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CIHM/ICMH 

Microfiche 

Series. 


CIHM/ICMH 
Collection  de 
microfiches. 


Canadian  Institute  for  Historical  Microreproductions  /  Institut  Canadian  de  microreproductions  historiques 


(^"1987 


Technical  .ind  Btblioyraphic  Notes/Notes  techniques  et  bibliographiques 


The  Institute  has  attennpted  to  obtain  the  best 
original  copy  avcilable  for  filming    Features  of  this 
copy  which  may  be  bibliographically  unique, 
which  may  alter  any  of  the  images  in  the 
reproduction,  or  which  may  significantly  change 
the  usual  method  of  filming,  are  checked  below 


L'Instltut  a  microfilme  le  meilleur  e.'iemplaiia 
qu'il  >ui  a  ete  possible  de  se  procurer    Les  details 
de  cet  exemplaire  qui  sont  peut-etre  uniques  du 
point  de  vue  bibliographique,  qui  peuvent  modifier 
une  image  reproduite,  ou  qui  peuvent  exiger  une 
modification  dans  la  mithode  normale  de  filmage 
sont  indiquAs  ci-dessous. 


Coloured  covers/ 
Couvertur«  da  couleur 

Covers  damaged/ 
CouverturB  endommagee 

Covers  restored  and/or  laminated/ 
Couverture  restaur^e  et/ou  pelliculAe 


I 1    Coloured  pages/ 

I I    Pages  de  couleur 

□    Pages  damaged/ 
Pages  eodommagees 

n    Pages  restorud  and/or  laminated/ 
Pages  restaurees  et/  ou  pelliculeea 


,  Cover  title  missing/ 

I I    Le  titre  de  couverture  manque 


n 


[ — yC    Pages  discoloured,  stained  or  foxed/ 
\y      Pages  d6coloree3,  tachetAes  oi'  piquees 


n 


Coloured  maps/ 

Cartes  giographiq;jes  en  cojisur 


]      I    Pages  detached/ 
' I    Pages  detadiaes 


1 Coloured  ink  li  e    othor  than  blue  or  black)/ 

I I    Encre  de  couleur  lie   autre  que  bleue  ou  noirel 


I   "7!    Showthrough/ 
'y    I    Transparence 


□    Coloured  plates  and/  or  illustrations/ 
Planrhes  st/ou  illustrations  en  couleur 


□    Quality  of  print  varies/ 
Quality  inAgale  da  limi 


ipression 


G 


Bound  with  other  material/ 
Rali*  avac  d'autras  documwnts 


□    Includes  supplementary  material/ 
Comprend  du  material  supplamentaire 


n 


Tight  binding  may  causa  shadows  or  distortion 
along  interior  margin/ 

Lareliure  serree  peut  causer  da  I'ombra  ou  da  la 
distorsion  la  long  da  la  marga  int^riaura 

Blank  leaves  added  during  restoration  may 
appear  within  the  text    Whenever  possible,  these 
have  been  omitted  from  filming/ 
II  se  peut  que  certamrs  pages  blanches  ajouttaa 
lors  dune  rastauration  apparaissant  dans  la  taxta, 
mais.  lorsque  cela  4tait  possible,  ces  pages  n  ont 
pas  m  filmAes 


n 


Only  edition  available/ 
disponibia 


□    Only  edition  ; 
Seule  Edition 


Pages  wholly  or  partially  obscured  by  errata 
slips,  tissue),  etc     have  been  refilmed  to 
ensure  the  oest  possible  image/ 
Les  pages  totalement  ou  partielle.nent 
obscurcies  par  un  feuillet  d  errata,  une  pelure. 
etc  .  cnt  At*  filrr^es  i  nouveau  de  facon  a 
obtanir  la  meilleure  image  possible 


Additional  comments  /  VariL ui  pagings. 

Commentaires  «upplamentaires 


This  Item  is  filmed  at  rhe  reduction  ratio  checked  below/ 

Ce  document  est  filme  au  taMX  da  reduction  mdiqua  ci  dessous 

10X  14X  18X  22X 


■T" 


I 


26X 


30X 


12X 


16X 


20X 


a4x 


2SX 


32X 


Th«  copy  filmed  harm  has  been  raproducsd  thanks 
to  (tia  ganarouty  of  ° 

Memorial  University  of  St.  John's 


L'sxamplaira  fllmA  fut  raproduit  gr^ca  i  la 
g^nirosit*  da: 

Memorial  Univf 'sity  of  St.  John's 


Tha  imagas  appaaring  hara  ara  tha  bast  qukMty 
possibia  considaring  tha  condition  and  lagibiiity 
of  tha  original  copy  and  in  kaaping  with  tha 
filming  contract  specifications. 


Las  imagaa  suivantaa  ont  AtA  raproduitas  avac  la 
plus  grand  soin.  compta  tanu  da  la  condition  at 
da  la  nattat*  da  I'axainpisira  film*,  at  an 
conformity  avac  las  conditions  du  contrat  da 
fiimage. 


Original  copiaa  in  printed  paper  covers  ara  filmed 
beginning  with  the  front  cover  and  ending  on 
the  last  page  with  a  printed  or  illustrated  impres- 
sion, or  the  back  cover  when  appropriate.  All 
other  original  copiee  are  filmed  beginning  on  the 
first  page  with  a  printed  or  illuatrated  impree- 
sion.  and  ending  on  the  laat  page  with  a  printed 
or  lllustrsted  impression. 


Lee  exemplaires  originaux  dont  la  couvanurv  an 
papier  est  imprimte  sont  filmte  en  commenpant 
par  le  premier  plat  at  an  terminant  soit  par  >a 
damiAre  page  qui  comporte  une  amprsinte 
d'impreasion  ou  d'illustration.  soit  par  le  socond 
piat.  aeloR  le  caa.  Toua  lee  autrea  axamplairaa 
originaux  sont  filmto  en  commen^ant  par  la 
premiere  pege  qui  comporte  une  ampreinte 
d'impreasion  ou  d'illustration  at  an  terminant  par 
la  derniire  page  qui  comporte  une  telle 
empre«nte. 


The  laat  recorded  frame  on  each  microfiche 
shall  contain  the  symbol  ^^  I  meaning  "CON- 
TINUED "),  or  the  symbol  ▼  (meaning  "END"), 
whichever  appliee. 


Un  dee  symboles  suivants  apparaitra  sur  la 
demiAre  image  de  cheque  microfiche,  selon  le 
caa:  le  symboie  — »>  signifie  "A  SUIVRE".  le 
symbols  V  signifie  "FIN" 


Mapa.  plates,  charts,  etc.,  may  be  filmed  at 
different  reduction  ratioa.  Thoae  too  large  to  be 
entirely  included  in  one  exposure  arm  filmed 
beginning  in  the  upper  left  hand  corner,  left  to 
right  and  top  to  bonom,  aa  many  framee  aa 
required.  The  following  diagrama  illuatrate  tha 
method: 


Lae  cartea.  planches,  tableaux,  ate.  peuvent  ^tre 
film^e  k  dee  taux  de  rMuction  diffArents. 
Lorsque  le  document  eat  trop  grand  pour  itra 
reproduit  en  un  seul  clich*.  il  est  film*  i  partir 
da  Tangle  sup^eur  gauche,  de  gauche  k  droite. 
et  de  haut  en  bes.  an  prenant  le  nombre 
d'tmagea  n^ceaaatra.  Las  diagrammes  suivants 
illustrant  la  .-n^thode. 


1 

2 

3 

4  b        I        D 


73^/3 


OPINIONS 


or 


i 


EJIIiNEiNT    LAW\ER:i.<5Si««^ 


^^ 


ON    VARIOUS    POINTS    OF* 


JUL 


138? 


r 


% 


""M 


EKGLISH  JUIUSPRUDEft^^ 


.S^^ 


CUIF.FLY    tOMERMAG    THE 


COLONIES,   FISHERIES   AND  C0M3!I:RCE 

OF  GREAT  JUIITALX: 


COLLECTED   AND   DIGESTED,    FROM  THE    ORIGmALS    IN    THE  BOARD   OF 
TRADE,   AND  OTHER  D-  /OSITOHIES. 


BY  GEORGE  CHALMERS,  Esu.,  F.li.S.,  S.A. 


lU^RLINGTON: 
C.    OOODKICH    AND    COMPANY. 


1858. 


,   r HE  FACE 

TO  FlIIST   AMEIUCAN    EDITION. 


T 


answors   ot'tlK-    wiso,  th()ii<.li    la.st  in  order,  are 


>-'las<c,l    with    the    Pi 


niiKiDi--  t! 


R'   SdUl'CCS  ( 


(111(1  iiliium-  ant  s(Ti[.t()  aut  siiio  scriplo,  ut  ai-ul  Gi 


iii(i[)mii  placita    of  a  scvile  court 
I  law.     '■  Constat  autuiii  jus  no.strum 

roecos, 

^cuv    v',,a.,;v.:,  ,x:v  .-jjprxcc,   !,    '5;  r/~^ p";;o,,'  j.l  est,    logUIU   alilW     SUUt 

.-^••npta*.  alia'  ik.ii  s;'i'i[)t:i'.'  Scciiitiuu  aiitoiu  jus  est 
1 '\,  plrlii-citiiiii,  scnatus  cousultuin,  Prinripiun  olacita, 
inaLiistr.ilimin    (Mlic(;i,    rcspousa  prudentuiu."    Juris    lu- 

.'''til  iiti'Miiiiii  liin'i"  priiuus. 


II   llic-c 


riiilcd   States  of  Am 


(M 


iea,    rojoicMnf^j  in  tho 


>>V('rci-ii(y  we  liavc  now  posscsscil  nearly  one  hundred 
leaiiy  li»l'iiri;-et  the  history  of  the  past. 


vears,  we  are  tn' 


I'll!  11    ^\■e 


pennil  oursels-e>  (o  fn-nft  it,  our  descendants 


will    tak-  ii<  to    ta-k,   and    thou-h   sellisi 
'•  w  liaMi.i-  |in,icii|y  dene  I'or  us",  let  ii> 


nu'ss  mnv  sav, 
reiiu'i'.ilier  what 
(Hi:-  aiiee-liMs  have  done.      This  hook.  Well   studied    will 


iepa\- 


t  he  .\  iiieriean  n 


!•  his  pains.      Cnh.nial  ;:nd 


l.i(.\ineial  doinination,  inidei  which  tlie  American  colon- 


I 


IV 


FUKl'-lCE 


;os  s,i  ]on,a-  suflorc^d.  is  at  an  oml  huf  its  rocords  deserve 


to  ho  treasiii 


(Ml     lil). 


()l 


)sr-cro    voy 


(sayi 


Livy.) 
admit  t 


^i  ;i<iu  !id  Tasti 


on  au  ronuuoiitanos 


^anul 
pon 


ems    n 


tific 


mil 


imiti' :   lie  ca  ijuidoin  ■eiinus.  q'-i' omnes  peregrini 


:'ti; 


ll!l    SCIUUl 


<  'onsiiic- 


111   locum    re;;i!iii  sno''essisse7 


no 


0  aut  juris  aiil  aiajostatis  (n,id(;tiain  liahere,  qi-oci  nou 
in  regihiis  auto  I'liorit  /'"   iih.  4.  cap.  ;i. 

The  opinions  of  the  Att.  .rnoys-CJeneral  of  the  rinitcd 
States  liave  iieon  puhlished.  and  their  vahie  is  known 
to  all  lawyiTs.  It  cannot  ho  said  the  present  piddica- 
tion  porfscs.sos  the  same  practical  value   !  LiUenipus  cday 


reruiu  destroved  even    tl 


10  lintoi  lil)ri  of  ;aioient  Rotuo, 


ami  the    A 


11101 


:ii     i)ie 


!iia\-  tie 


aid  iv)t  to  he  ill  cni- 


pKiyoil  ill    rcjirodiiciii-- a  h.  :ik    r(>rs.';(;t 
( opt  hy  llie  ()hsfr\iii;j.-  low. 


'I" 


ten  in  Fur 
Ri 


ope.  ex- 


le  aiijoiniiij^-  IJntisli  (mhuii- 


ios.  the  u'row 


111    o|    w  Inch  I 


t  is  so  pleasant  lor  us  to  wit- 


aiiil  \v!i..  so  largely  avail  ihoiuselves   of  our  iiuhli 


cations,  will  led    mi  iutere-t  in    tl 


production    of  our 


pre 


.ss. 


:elve.' 


I-  <piito  a-  luiicli  d.'ilicatod  to  them  as  to  our- 


I  In-  hii'ilil  ai,      ill 


iJe^tN  of  the  people  of  tlie 
I  iiitod  States  of  Aiiieric:.  \\  ,■  can  now  say  with  the  poet, 


Wliile  we  etironic 


he   tlliie<  () 


■peiidence  long  past 


I'ua  ri'/ta  est  Munis  X 


liiis  :  s;icrat;i  mii 
I  j'lvis  iiiito  (111. IS. 


(1  iii 


Tomjila  ]'iii;iiit  lucus    \' 

IJ.iiuuliK  lit  ,-:i\.i  hii  uiii  ciiciitibli'dit  :dt(i 


Quilibct 


:iui'.  III 


I'lit,  confute,  tutus  itIh. 


0 


ipKiiii  (Ic  tciiui    Itmiiruius  (•ri'.^irio  crevit 


Ovi.lii  faslnruni  lili.  :!.  v.  A^'.)  ct 


.sCil 


BIOUKAlMllrAL  NUHCE 

OK  THE  EDITOii. 


George  Chalmers,  th 


e  con 


wa.s  i.orii  at   Fociial, 


"Pilor  of  the  present  volume 


ors  ill    Scothuul  in    tl 


and  educated  at  King's  College,  Aherd 


th 


e  law 


at  Edinburgh,  and  in  17G3 


cle  to  America,  to  assist  1 


»e  year    1742. 


oen.     He  studied 
accompanied  an  un- 


iini  ill  the  recovers-  of  cert 


ands  claimed  hy  liim  in  Maryland.      II 


ain 


cd  I 


liMlScI* 


''"iii  tlie  practice  ofl 


ii^l  in  a  i'cw 


e  soon  estahlish- 


li^^  profession  at  Baltimore 


bu 


ye;irs    acquired  an  ext 


sine.' 


t: 


I"  the    revolutionary    stru'-irl,.   i 


ensive  and  lucrative 


le  royalist  cause,  and  in  tl 


the 


payment  of  tithes,    1 


clergv.      III    ;| 


le    espoused 
le  great  (piestion  relative  to 
H'    appeared    in    behalf  o|'  the 


ii-^    eoiitr(i\ers\-  I 


le    was    ( 


celebrati-d  Patri.'k  II 


'liposcd  b 


V    tl 


le 


enry  of  V 


to  have  displ,.,ved  uuudi  1 


"giuia,  and  was  admitted 


I'lir  t 


earning  and  abilit\   in  ^ist 


[iin- 


HMdannsof  theKpiseopalchur.-h.  buttf 


partv 


t 


'''■'*'  aggravated    perhaps  l,\   tl 


e  violence 


ilvcu  III  tin- 


le   part  In 


liail 


1 


III: 


profi 


'i^pi'te,  soon    compelh.d    him  t 


o    sa(    ihce 


^i"nal  prospects  and  seek  1 


tive  country 


"or  reliigo   in  his  na- 


I 


« 


VI 


lUOuRAI'lIK  AI.     .SKF/rCIl 


Mr.  Chaliiiei's  .'irrivotl  in  EiiKlaml  about  the  v 


oar  I  /  ir>, 


and  immediately  <levoted  himsell'.  with  mueli   assiduit\- 


to  the  .'^tu 


(i\'  ( 


)t'  the     histoi'\-  of  tile    ijiiti.sh    I'ol 


oni(j~  iu 


North  Anurifa.      Ili.s  Tirst   work,    the  PoJitieal    \anal!- 


of  tlie    Tnited   ( 


olonies.   (lis 


placed 


•rea 


t  dil 


m'cnee,  re- 


seareh,  ancl    iitKiity,    and  has  l)een  of  ossentiai    use    iu 


facilitatinir    the  hibors  of  hiter  histoi'ieal    invesliirat 


or; 


i}i  the  same  lield.     The  lirst  volume    was- 


ibl 


puijlislied  in 


1780,  Init  the  second  unfortunately,  never  appeared. — 
In  l7S(i,  yiv  Chalmers  was  appointed  chief  clerk  to  the 
committee  i^\'  Piiv'    Council    charged    witli    •  the    con- 


sideration ol'  all  matters  relatimr  to  tratlc    and    forei";u 


phuitat 


ions,''  and  he    continued  to  discharirc  the   duties 


of  tnis  oflice  lor  ncarlv  liftv  vcars.     The  situation  u'avo 


Lim,  of  course,  the  freest  access  to  all  the  archive.- 


con- 


iiected  \v 


itii  tuo  en 


loni.il  interests  of  Creat  IJritaiu.  and 


furnished  him    abundant  facilities  for  the  prosecuti(jn  of 
his  fivorite  studies. 


Amoui 


ihc  nunien  us  works  of  wliicdi  Mr.    (,'halmer> 


was  till'  autliDi'  Ol  coinitiler.  we  ma\"  mention,  in  addition 


to  the  Annals 


am 


u-<  collection  o 


fOl 


tiniou- 


a  Collect 


ion 


A' T 


rea  tie 


brt 


we 


( Jieat  Britain  and   otlK'r  l' 


owers  111 


vols.  Svo. 


iOllOMIl 


:>n 


iiie  o 


fTI 


lOllKb 


V 


line,  aullior 


of  thr  Iti-htof  Man,  (tenth    e(litinn>   IT'.'-',  under    the 
as-u.iiu'd  name  of  I'lMiieis  ()ld\s  ;  a  Clu'i^uiiloLi-icitl  A''i'(iuut 


)f  ('(imiiieiee  a  lid  Coi  iia'j:e  ill  (Ireat  I'ritain  iVoi 


11  i  ue  uc 


toratiuii    to     iSjd,     f.ondoii.     ISlI);    Consideration 


s    on 


Comm;.'rce,  IJiiHion,  Coin,    Circulation,    and    E.xcha 


11  (TO 


'•F     rilE    KDITOi;.  vii 

f-ondoi,  ISI  I:  hut  ho  is  most  widolvknoui,  among -cncM-al 
••'^^nlershyhis  Lilb  ofMary  Queei,  of  S.ots.  Loudlu  18  !8, 
liv"l>.  ito^  .•cprinteu  in  ;^  vols.  8vo.  and  his  (klcdonia.or 
an  Accnimt.  Historical  and  Topogra,,hic.oCNorth  Britain, 
vol.  I.  London.  1807  4to.  vol.  IJ.  London.  1810  4to,  both 
ofwhich  arc  works  ofgreat  and  permanent  value.     The 
i'ah.donia  was  no^or  completed,  but  it  was  tlie  principal 
..r..,nal  work  of  his  lilb  and  occupierla  large  proportion 
or  hi,,  leisure    hours  for  a   period  of  more    tluui    Uv,^nty 
years.     It  was   designed  to  extend  to  five    voIumc.<^,  but 
though  he  had  made  extensive    researches   for  the  pur- 
pose or  completing   it,  the   materials  he   had    collected 
were  not  iound,  at  his  death,  in  such  a  state  as  to  war- 
rant tlieir  publication. 

IIo  died  at  London   on  the  31st  of  May   182-5,  at  the 
ago  or  eighty-three,  and  as  his  last   illness  was  i   short 
one,  he  kept  up  his  literary  activity  to  nearlv   the  close 
ot  lus  lile.     The  present  is  not  a  lit  occasion  ibr  a  criti- 
cal appreciation  or  Mr.  Chahners'  literary  ability  but  the 
value  or  his  contributions  to   the   domestic    hls'torv   6r 
Great  Britain,  and  to  that  or  her  colonies  and  their  re- 
lations   to  the  mother  country,  is  admitt,.]  to  be  great 
Tlie  work  a   new  edition  of  which    is  now   on'ered   to 
the  public,  though    relating    to  questions  not  much   dis- 
cussed at  present,  will  be  Ibund  to  touch  upon  principles 
whose  practical    bearing  is    even  yet    bv  no    means  ex- 
hausted, and   it  is    believed  to  posses.s  scarcely  less    in- 
terest ror  the  citizens  or  the  United  States,  than  lor  the 


■■,»=- 


•  n 


i'l 


VllI 


ini>(,HAPHli    \I.     SKKT'   IT. 


people  of  tiiusc  Aiaerieau    Pniviiiee 


wliicli  still  reninin 


connected    with  the    liritisli    ,nnvn         li     is  in  I'act  the 
most  complete  and  authentic  record 


AVC 


1  ii    i  lie 


(current  ol  Icl^u  o'imiun  m 
between  that  countrv  auc! 


JMViiland    upon  the  r.'lalion 
her  .Vuierican  colonies,  and.  a 


Jj^lCl 


1.  has  been  ver 


y  frequently  referred  to  hy  the  al)lest 


American  jurists  in  tlie    discussion    o 


di 


llie 


a'cat   (lues- 


tions  it  is  so  well  calculated  to  elucidate.    lla\nig  never 

t    London   in 


e  a 


been  reprinted  since  its  lirst    appearan.: 

1814.  it  has    Ijecoine  extremely  rare,  and  ilu   p 


uhlishen 


believe    that    thev   are 


renderiii'ca  useful  service  to  the 


professiona 


gene 


raiiv 


land  tlie  historical  iiKiuirer^  l)y  makini:;  more 
iccessihle  so   valuable  a    repository    of  legal 


d  political  duclriiH- 


aim  po 


BIOGlUPniCAL    NOTICES 


OF    AUTHORS 


Alau.-.  .SVr  Jo/,n  Fortcscuc  Lord  Fortescue. 

Ardrn,   K,r  Richard  P..  T^rd  Alvanley 

Chotmrr,.    Geor.r,,  dnk  of  Cor^mittoe  of  Pnvy  Council. 

Cook,  .Sir  J,.h.,,   K,,.  /^  Advocate. 

Com^non    Hrvry.   Tlishop  of  I^ndon.  ' 

De   Gr.'f.,   Sir    \MUi<nn,  Lord  W^V.in -ham 

ne    Witt,  M    .  K...icroftI.e6eal8/ 

Eyre,  Sir  Rob-rt,  Clucf- Justice. 

Ejrton,  Dr.    Thomas,  Of  the  Coninions. 

Fane,   Francis,  Counsel  to  Board  of  Trade. 

Ftnch,  Henearre,  Solicitor-(,Teneral. 

Gibson.   Edmond,  Bishop    ,f  London. 

Harconrt,  Sir  Simon,  Lord  Chancellor. 

Havies,  Sir  John,  ►Solicitor-General 

Ueds^cs.  Sir   Charles.  Kind's  Advocate. 

Hendman.  Humphrey,  Doctor  of  Civil  Law 

Henhy.  Sir   Robert,  Lord-Ciiancellor. 

¥Mt,  Sir  .John,  ChiofJustice. 

.Jackson.  Richard,  Privy- Counsellor. 

Jenkins,  Sir  Lionel,  Privy-Counsellor. 

Jones,  Sir    William,  Attorney- General. 

hemp,    William.  Attorney-General,  of  New  York 

hen7jon.  Sir   Lloyd.  Chief-Justice. 

AVnzr,  *V  John,  Treasurer  of  Inner  Temple 

htng,  Sir  Peter.  Lord-Chaucellor. 


Page. 
25 

36 

V 

23 

22 

35 

39 

24 

19 

26 

20 

26 

28 

2i 

U 

SH 

as 

20 

ar 

19 
19 

ar 

86 

19 
81 


iil 


t 


X  BIOGRAPIlICAt,    NOTICES, 

Lamh,  S:ir  Matthnn,  (''onnscl  to  Boanl  of  Trade. 

Levitiz,  Sir  Crcsir///,   Attoniov-ncnoi-Ml. 

Lloi/d,    <V//-   Nathaniel,   Ailvci'iito-liciioral. 

lA()7jd,   Sir  liirfinnl.    I'aron  of  the  Exchri|Dcr. 

Lutwyrhr,    17io»ia.i,    Kinr^'.s  ('.lunsel. 

Macdonald,  Sir     Xrrliihald.   T'livy-rouncillor, 

ISlarriot.  Sir  James,  Vico-(  liaiiccllor, 

JSIotilaimc,   Sir  Janien.   Cliicf- ['ni-c-ii. 

Murray,    //mi.     \\  i/lia/n.  Cliicf  Justice. 

Anrtuii,   //ijiri/,    Kin;:".--    Vilvdciito. 

Nort/ipy.  Sir   I'.ilinird.    Attornev-C Ji'?iornl 

Norton,    Sir   /Irtrher,  Ln-i!  (iriintlo}-. 

Par/ccr.   Sir    'J'Ji"/na.<t,  K;irl  of  Macclesfield. 

Pratt.   Charles.    \\:\\\   ('anuicn. 

RaijmouU,  Sir   liohtrt,  riiicf  Justice. 

Reere,  Sir    Thdniii.f.   riiid-, Justice. 

Ryder.   Sir   /)u(lley,   Chii  r.Iusticc. 

Sawyer,   Sii     /{tihi  rt,    Attun.  y  (Iciicral. 

Smith.    William,  ( 'lucr.Fustici'  of  <^)iioliee. 

Somer.i,   Sir   Juh  i.    L 'rd-CliaiiiTllor. 

Straii^^e^   Sii    Jiihii,    Master  >.f  tlio    I\i.lls>. 

Strahiiii.    /)r.     William.   Of  the   Commons. 

Talhiil,   Chnrle.'i,   LMr(I-( 'jiaiiccilnr. 

IVm/ile.   Sir    William,   Master  of  the    Rolls. 

Th'im/i.\oii.   Sir     \\  illiam,   lianm  of  the    E.xchcqner. 

'Priliy.   Sir    lirnvi'c.   Chii'l' .lii>lifo. 

TVct'or,    Sir    '/'Imma.-'.    < 'hii't  .1  notice. 

Ward,   Sir    /'.dintn'..   Ciiicl  Flaron. 

HVnri'",   Sir   ('leiinnl.   .'Solicitor  <  leneral. 

West,  Rirharil,  VUnnvvWin-  <.f  inlanii. 

}Vil/e.t.    /'.iltraiil,   .In-tin'    Kin:,' •<   lliiuii. 

Wille.s,   Sir   Jiilin.    Chiel  .fii.«iiice. 

H  I /mini,' ton,    Su    /Vanri.w   Snlicilor  (MMienil. 

Wynnt.   Sir    William,    N'uar  (ieneial. 

W(vid,   Robert,   Ifocfor  of  Civil    Law. 

Yor/;e.  Hull.   C'tarlcs,  Lonl-Chaiici  Uor. 

Yorlcf,   Sir   /'hilip,  (.^hief  Justice. 


Pagg. 
37 

20 

28 

U 

28 
88 
9t 
24 

29 

28 

28 

84 

28 

32 

25 

28 

29 

20 

37 

21 

2*> 

25 

28 

89 

26 

21 

22 

21 

27 

2(> 

85 

'28 

19 

38 

23 

83 

27 


CONTENTS 


THE    KING'S    PREllOG  VTIVE   ABROAD. 


I.     OF  HIS  ECCLESIASTICAL  AUTHORITY. 


Tl; 
170- 


c  opinion  of  tho  Attorney  (ienoral  Nortl 


ipy,  on  til  is  subject  in 


Page. 


l/U..,  rMat.ng  to  tl,o  Je«uit.s  and  ,„.pi.s(.s  i„  Marylun.i. 

The  lotter  of  tho  Ri^-ht  Rev.  Dr.  (hI.som,  the  n,.,hop  of  LonJon 
to  the  Duke  of  Nowea.s.ie,  ,„,.,u  the  r.ght  of  tho  iudepeDcJcnt  niin- 
isters  in  iV'ew  England,  to  hold  .synod.. 

The  joint  opinion,  of  Attorney  and  Solicitor-G-ieral,  Vorke  and 
V\  earg,  in  17i.-|,  on  the  same  .sni.jeet. 

Mr.  WeM\s  opinion,  in  171'.i,  on  the  king's  right  to  present  to  va- 
cant  hciiitici.s  m  Virginia. 

T.o  opinion,  of  ,he  Attorney  (Joneral,  Northey,  relative  to  the 
clergy  of  Virginia. 

The  »anie  lasryer'.H  opinion  on  Poprr,  in  .Maryland. 

Tho  ISishop  of  London-..  oh.s,.rv,„..,n,  on  a  l..w  of  Virginia  for  tho 
•  upprc-.     .n  of  Vice. 

The  .Vttorney  (;eneral.  .North.Vs,  opinion  on  the  gnnling  of  let- 
or.  o   ad.uiui.,tratiua  ou  tho  .amo  e.„ato,  both  in  K ugUnd,   and  m 
luo  eoloiiio!). 


42 

44 

45 

53 

56 
GO 

63 

C3 


n.     (,F  Tin;   KINu-^  civil  ALIHOUiri'. 
Pint.     Or  HIS  Ri,.Hr5  ok  ntneKitrv. 

TLe  Lord  Chief  JuMice  llolf,  „p.nio„,  U  Juno,  Ui'JO,  that  th. 


III! 


-4 


h  '  \\ 


f  1 

^^^^1 

ifH 

xn 


CO«TENTS 


King  might  take  away  the  Charter  of  Maryland,  (Lord  BaltiTiore's,) 
it  being  in  a  case  of  necessity. 

The  opinion  of  the  Attorney  and  Solicitor-aenural,  NortLey  and 
Ilarcourt,  that  the  Queen,  hi-.ving  a  i.ght  to  govern  all  her  people, 
may  resume  a  Guverninent  under  a  Koyal  Charter  that  had  been 
abused. 

The  opinion  of  »!  e  Attorney  G  jncral,  Northoy,  on  the  Queen's 
prerogative  to  receive  a  surrender  of  the  Peni-sylvania  Charter. 

The  opinion  of  fhe  Attornty  and  SolicitarGeneral  Ryder,  and 
Murray,  on  the  Kings  prerogative  to  receive  the  resignation  of  the 
Charter  of  Georgia,  and  to  estaUlish  a  Uoyal  Government. 

The  opinion  of  the  Attorney  General  Northey,  on  the  surrender 
of  the  Bahama  Charter. 

On  the  King's  Iliu'ht  to  the  three  lower  Counties  on  Delaware, 
by  Attorney  and  Solicitor  Geaerai,  Xorthcy  and  Thompson. 

Of  the  King'.s  authority  over  t.'uernscy  and  Jersey,  by  tho  At- 
torney an- i  oolicitor,  Uydirand  Strange. 

Of  the  King's  right  to  tiic  i.-slaiuLs  in  the  river  l)claft„.-e,  by  tho 
Attorney  and  Solicitor  (.Jun-.Tal  Uaymond  and  Yorke,  in  17-2I. 

Of  the  Kinf^;'s  right  to  certain  waste  lands  in  New  Hampshire, 
by  the  AUoriicy   and  Solicitor  General,  llyder  and  Murray. 

Mr.  West's,, pinion  h.jw  far  the  King  has  a  right  I.,  gr»nt  ceded 
lands. 

The  opiinon    of  the    Atturney  and  Snl.ctor,    Vnrke  an. I  Tilbot, 

whether  the  King's  right  t,.  the  lands.it  r,.Mi,i,,iiid   r,  main   in   the 
Crown. 

Of  tho  King's  right  to  tlie  wood.^  in  (he  Ppjvuk  e  ..i  Maine  bv 
Mr.   \V,M.  '     ' 


Page, 


65 

G6 
G7 

69 
72 
73 

88 
90 

91 

105 

!0G 

133 


Mr.  l-'ane's  opinion  on  tiio  King's  right  to  tiic  wi.o.l.s  in  New  Kii 
gland  ,37 

Tho  opinion  of  tlu-  Attorney  :iii-I  Sijluit..]- ( J.nci-il.    Y   .-ke  i>nd 
Talbot,  on  the  King's  right  to  tin;  woods  ni  N,w  Kngiand.  139 

Tlitid.      Ok   Mil    KiM.'s  I, RAN  Id. 

The  opijiii)!!  ;if  the  Alt...-      ,  t;,n-rai  Treby,  in   1689,  ou  a  grant, 
for  Ufu,  of  Auditor  of  tho  Virginia  revenue.  joq 


CONTENTS 


xm 

Pagt. 


144 
146 

147 

119 
150 

i.-.o 


Of  the  King's  right  to  mines  in  New  Jersev    hv  t^«  A»*        ^ 
«d  Solfcitor,  Ra,,no„d  a„.l  Yorke.  ^'     '        '^""'""'^^ 

So^:.!rr"'  ;'f  *"  '"'"'^  '"  ^'^«"^'^'  ^^  ^'^o  ^«o-ey  and   '^^ 
Holic.'orGenerai,  Somars  and  Trevor. 

Of  the  peculiar  Escheats  i„  New  Jersey,  which  was  in  the  hands    '  ^^ 
of  Propr,etar.c«,  by  the  AttorneyGeneral  Northey  ,43 

Mo!:;^ "'  '''  "^'""'  '"  '^'^^'^^'  ^^  ^^«  ^^oliator.General 

On  the  escheat  of  ambergris,  in  Jamaica,  by  the  same  lawvor 

Gel?L::I:r' ""^^  ^"^  "^^-- ^"  ^-^'-' ^^ '^^- At.rney. 

^^^On^the   Queen's  right  of    .uitronts,  i„  New  York,  by  the  same 

^^''  "''"''"  '"  '''  '''"«"^  "^'^  ^"  troasurctrove,  i„  the 

f        .>      .  *'      "^'fe''' w   the  tornloryof    \vi1,,m   ;>,  v 

foundland,  which  had  Leon  grantc  J  to  S..  r  /.  '"" 

„,  .  «"*"'^-"° '^"■<^'-Wgo  Calvert  in  !(;-{     151 

1  he  opinion  of  the  Attorney  Goner-.!    ir.,r.       . 
riglUof  .cheat,  to  an  estate  m'j::::;     ''''^^"""' •^''  •''•' ^^•'-■^ 

The  opinio,,  of  Mr.  J,.ek.son  on  the  KinL'  s  ri.l.t  ...        >  • 
trees  growing ...  ,he  K,,„„b,,k  Kivor  '        '       '  '"'''' '""" 

^-  r.,   . or  , he  pre.rv.,on  of  „.e  .,,,„,„ ee.  n.    X.,.  k„; 

.__.^^  '"-'^*"-'«'"°"t''oe.,n,,,.eredpartofStK„f.., 

eon.  in       ..ne.  "'^'^''  '^'""  '^"^"'«  "^  ''"'V  '>'  «r.y  «oNpo' 

150 


153 


l,J7 


Page. 


XIV  CONTENTS 

Mr.  Lamb's  opinion  on  the  appointmeat  of  SherifiFs  in  New  Jer- 
sey. 161 

Mr.  Fane's  opinion  on  the  King's  power  k.o  confirm  the  titles  to 
land  in  Couneoticut.  163 

The  opinion  of  the  Attorney  and  Solicitor-General,  Ryder  and 
Murray,  en  tlio  King's  right  to  make  new  grants  of  land  in  New 
Kauipshirc.  164 

The  opinion  of  the  Attorney  General  Yorkc,  on  the  manner  of 
discussing  objections  to  the  King's  grants.  168 

The  opinion  of  tin  .Vttorney  and  Solicitor-General,  Yorke  and 
Talbnt,  on  the  (jucstion  between  the  King  and  the  Proprietors  of 
the  Nonhcrn  Neck,  in  Virginia.  169 

The  opinion  of  the  Attorney  and  Solicitor,  Ryder  and  Strange, 
concerniii.T  the  grants  of  lands  in  Carolina,  before  and  after  thepur- 
cha.>?e,  liy  tiic  King,  of  the  Proprietors'  rights.  17! 

The  opinion  of  the  Attorney  and  Solicitor  General,  Yorke  and 
Talbot,  on  grant.s  that  a 'o  voiil  for  uncertainty.  175 

The  opinions  of  Mr,  F.iiie,  and  of  the  Attorney  a^.'d  Solicitor-Qen- 
cal,  ^VllK's  anil  Hyib'r,  on  the  question  of  patenting  lauds,  under 
old  gra.itb  from  tiir  Proprietaries  of  Ciirolina. 

Tiic  o[ii.ii(Mi  of  tiio  >aiia;  lawyer.^,  on  tiio  nullity  of  a  similar  grant 
to  Mr.  Ilodgsiin. 

Tilt;  npiiiiiin  nf  Mr.  F,ini>,  on  he  "aliJity  of  the  grant  of  the  See- 
rctarv"."  iirtii'i'  in  South  ('aiollua. 

The  opinion  of  the  Attonit'y  <  Jciicral  Willos,  on  the  right  of  the 
Proprietor  of  .Maryland,  to  app;iint  to  offices,  unil  'r  the  King's 
Charter". 

luUlill.        Ol'    AN      VMIM.M.D!         IIXCMSION    OF    HIE    Kl.Mi's    KlUUT    OF 
GRANTINO    A    Coi.ONUr.    OlFK  E. 

The  ojiinion  of  tlu  Solicitor  (leneral  Montague,  on  the  exclusive 
right  of  the  llovornors,  to  appoint  naval  otheerM.  181 

Fifth      Ok    iiii;    Kim.'s  i.im.kai.    u  iiisiiirnoN  ovlk.    iii.s  tcbri- 
Till; IKS  AnnoAi>. 

The  iipinion  >il'  the  .Vltoniey  and  Solicitor  (jeneral,  R.iymond  and 
Yorke,  ou  the  Ku .^'s  power  to  establish  a  Civil  Jurisdiction  at 
Oihrallar.  18'. 


176 
173 
178 

179 


XV 

Page. 


CONTENTS 

The  opinion  of  tLe  AttorneyGoneral  Northey,  th„t  the  Queen 
ii..gl.t  estabL^b  a  Court  of  Equity  in  Mn«.sachu.sett.s  Bay.  ,94 

of  fw  y;f  Vf ""  ™  *^'  ^^'"^'''  ''^^'  '°  '^'^*'^^''«''  - "«-  nffi- 
01  Jaw  at  Harbadoes. 

105 

The  opinion  of  the  Attorney  and  Solioitor-General,  Ryder  and 
Murray,  on  ^he  K.ng's  right  of  establishing  a  Gover.n.ont  in  Geor 
gia,  upon  the  surrender  of  the  Trustees. 

in  l^^rxl:^^'  ^"  '''  ""''''    ''^"  '''''"^'  '•"  ^--^'>-.   "' 

199 
The   opinion   of  Chief-Justiee  Morris,  in  Now  Jersey,   on  the 
i^-mg's  power  of  mercy. 

^  200 


nr.      HOW    FAR    TIIK     KINGS    SUBJECTS    WHO    vvr 
GEATE,    CARRV  WITH  THEM  THE  LAU  ')P  ^Z.];^^ 
I'lrsf.     As  TO  Tui:  Common  Law 
Mr.  West's  opinion  on  this  subject  in  r^^O 

The  opinion  Of  the   At.orncy   and  Solicitor  General     Pratt  ,n^   ^ 
Yorke,  that  the  king's   subjcCs  carry    with  th^  -  th  , 

^1  .1  a  J         ^ai,j    Willi  lu^  -    tile  cnninion    l.iw 

wherever  tiny  may    form  settlements.  ' 

Mr.  F„„e  .s  opinion,  how  far  subjects  can  bo  detained  in  eus.odv 
on  a  charge  of  piracy.  cusiodj, 

c-  207 

oecond     As  m  xn.-    , 

AS    TO    Till.     I.XTKN,10N    OF    TliH    SrATIlT    LaW 

TheAttorney.Gcneral  Yorke's   opi.ion  on  this  su.,oct,  in  K2,-  208 
.hcopinionof  theAt.oincy   and  Solicitor.  Henley,  and  Vorke 
that^the  .ubjcct.  em.gr.t.n,,  do  ea.ry  with  then.  „i..  L.U.  taj,  .„ 

^  opinion  of  „,e   advocate,  the   attorney,   a„d   .,,;,,,,   „„^    '"' 
lorke,  and  Norton,  on  the  same  subject  in  1702.  "  ,^,0 

The  opinion  of  the. t.orney  and    solicitor  .cn.ral.   De  (irey  and 
W-iKs.on.hecUen.ionofaetsofparti,.mcn.to„.:.,,..,„:-^, 
''''  ""  ■■"■■' ■''-  ^--"7,  as  dominions  of  the  en.wn    i;,',;  •>,  . 

The„p,,i         f    ,„,^„^^   ^^_,   Mici.or.cneral.    R...vm„n.l,    and 
f-ke,  how  far  .he  statute  of  monop..,c.  extends  t„  ,,[.  ,..,„,,.,        .,,3 

The   opinion    of   the    attorney  general   Vorko,  .u   1727   how  far   ^ 
•Utute.  extend  to  the  Isle  of  Mau 


J- 
\ 
» 
k 

if'-- 


f 


!  t* 


XVI 


CONTENTS 


Page. 


The  opinion  of  the  attorney  and  solicitor-general,  Yorke,  and 
Wearg,  on  the  extension  of  the  laws  of  England  to  the  colonies  and 
other  ;malogouH  topiea  of    law.  915 

The  opinions  of  Northey,  Rjde-,  and  Strange,  on  the  discontin- 
uance of  the  American  act  of  queen  Ann.  !^2 


OF  THE  COLONIAL  CONSTITUTIONS. 

First.     Of  the  Governor. 

See  the  opinion  of  the  Attorney-General  Blenman,  of  Barbadops, 
in  172'.^  233 

The  opinion  of  Mr.  Thomas  Reeye,  on  the  same  subject,  in 
1727-8.  237 

Mr.  West's  opinion,  in  1725,  whether  a  Governor  can  vote  as  a 
Councillor.  238 

Mr.  West'.i  opinion,  in  1719,  concerning  a  Govemoi's  power  to 
prorogue  the  assembly,  under  an  adjournment.  239 

The  opinion  oT  the  Attorney  and  Sol.citor-General,  Trevor,  and 
Ilawles,  in  1700,  on  the  determination  of  a  Govern:r's  commission.  243 

The  opinion  of  the  Attorney  and  Solicitor  General,  Yorke,  and 
Talbot,  on  tiio  effect  of  notice  on  the  validity  of  a  governor's  com- 
mission. 244 

T!ic  opinion  of  Mr.  Thoma.^  Reeves,  and  Mr.  Lutwyche,  on  the 
continue. icc  <it'  tlic  govornors  commission.  244 

Tiie  ojiini'in  (if  ilio  Attorney  and  Solicitor  General,  Ryder,  and 
Miirr:iv,  On  the  (jupstion,  whether  the  great  seal  of  the  province 
shonlil  iiot  be  alfixi'd  to  every  act  of  government,  that  riMjuires  a 
npiil,  'n  the  (Jolo.^y.  246 

Tl j  iuion  (if  tlio  Attorney  iind  SolicitorGenpral,  Ryder,   and 

Murray,  of  'he  (Jovcrnor's  right    to  prorogue  the  As.icmbly  to  any 
j)lai'e  within  his  governnipn*.  248 

Tlip  opiiiicn  nf  the  Chief  Justice  Morris,  of  Now  York,  on  the 
ijui  >iioM.  wiuliur  thiM'hange  of  the   Governor   would  dit.'jolve  the 

Assiinl.ly-  24? 

Tlic  opinion  of  Mr.  Hamilton,  aa  eminent  lawyer  of  Po-:  jsylvauia, 
on  the  (ianiG  cubjcct.  258 


CONTENTS  jj^jj 

Mr.  Fane's  opinion  on  the  nature  of  the  bond  to  be.given  by  thf^'' 
Governor,  of  Proprietary   Goverumen^  for  observing  the  Act«  of 
„,         .  261 

The  op,n>on  of  th.  Attorney   and  Solicitor  GeneraK  Trevor  and 
nawlcs    on   the   tr.al  of  a   Lieutenant  Governor,  and  other  legal 

262 
Second.     Of  th-.-  Council. 

The  opiniou  of  the  Attorney  and  Solicvor-General,  Murray  and 
Lloyd  .„  ur.5,  on  the  question  whether  the  Governor  and  Council 
nave  the  j)uwei-  of  making  laws. 

The  opinion  of  ,he  Attorncy-neneral  Pratt,  on  the  several 
powcs  of  the  Co.noil  and  A.scn.l,l,  of  Mar, lanci.  ,,,, 

Tho  opinio,,  of  ,he  Attorney  and  Sohcitor-General,  Henley    and 

^  "\;;:;:::;;--^"'-'- - --^' '- --^- -^ -" 

2G8 
ll'^'J      Or  i„c  HK,-n,>K.MT,vK  As-^KMnr.v 

The  opinion  of  tho    At.ornoy.leneral    Kayn.nd,  on  the  King's 
powor   to  grant  the   privilege  of    ,aving  an   A-.,.n.Lly,    and  on  th 
n^..  «.ven  1,  ,he  Kin,  .,  particular  d.trie.,  to  ..L  dole;^  200 

ll.e  opnuon  of  the  Attorney  a„d  Soli,.i,or.(;,„„.,,    Kyd.r   and 
''''"'''  '" "-'  '-"'^'  '"■  "'--  f-  '"'-.sing  new  representatives    'm 

TLe  opinion   of  .he  same  lawyers,  on  th^   right  of  , he  Crown    to 
enable  part.cu.ar  town,  ,o  .end  delegates  to  the  A..e.nb,y.         '       o,, 

Mr.  Fane's  opinion  on  the  saaie  point 

273 

Th..  opinion  of  the  Attorney  and   Sol.itor.ieneral,  Ryder   and 
'.nir,i_\,  on  the  same  point 
Tl  ■         .    ,  276 

Theop.-nono.  the  Attorney  and  Folieitor-tkneral,  Murray  ..ul 
M'>.vd.  on  the  privileges  of  ,he  Jamaieu  Assembly.  ^  .,,., 

Thoopi,,,o,,of.hes,n„eWrs,whe r  a  per.o„   ehosen    into    ^^ 

^>   -W.  ..    ,.  had  a  ngl,t  to  ait  he  having  been  eonveted  of  a  crime 

The  opinion  .f  ,|.e  Attorney  au.  Sor  ^it,„  (ieneral,  Northcv,  and 
W.  o^t,how  far  a  representative,   aL.n.mg  h.mself.  may  be  pun- 


yo3 


2U4 


XVlll 


CONTENTS 


I* 


Page. 


Tlie  opinion  of  the  Attorney-General  Pc  Grey,  wlietlier  the  As- 
sembly of  South  Carolina  could  grant  money  to  the  Jiill  of  Rights 
Society.  295 


IV.     SEVERAL  OPINTONS  ON  THE  ACT  OF  THE  MARY- 
LAND ASSE.MBLY, 'FOR    THE  ESTABLISHMENT  OF 
RELIGIOUS  WOKSniP,  ACCORDING  TO  THE 
CHURCH  OF  ENGLAND." 

The  opinion  of  3Ir.  Hollyday.  an  eminent  lawyer  of  Maryland, 
on  this  subject.  299 

Sketches  of  an  argnment  on  tlii.*!  siibjrct.  by  Jlr.  Daniil  Dulany, 
one  of  the  ablest  lawyers,  wliith  Aniorica  ever  produced,  after  he 
had  retired  from  the  bar.  305 

The  Opinion  on  the  same  subject,  by  Jlr.  William  Paca,  an  emi- 
nent lawyer  of  Maryland-  320 


V.     OF  THE  WANT    OF    SOVEREIGNTY,  IN    THE   GOV- 
ERNOR,   THE     COUNCIL,    AND    REPRESENTATIVE 
BODY,  WHEN  MET  IN    ASSEMBLY. 

The  opitiion  of  the  Attorney  Giiienil  Harcourt,  on  the  impropri- 
ety of  an  act  cf  rcLOgnitiou  of  (jueeu  Ann,  by  the  Assembly  of 
Maryland.  332 

The  opinion  of  the  Solicitor  Gi 'jrral  Thomson  on  the  limited 
effect  of  an  act  of  naturaUlzatioii,  by  an  Assembly.  333 

The  opinion  of  the  Attorney  G('iicral  ^lurray,  on  the  i|nostion 
whether  an  Assembly  can  impose  a  duty  on  the  importation  of  con- 
victs into  a  colony.  333 

Mr.  Wont's  opinion  on  tlit^  (l\l(■st^on,  when  the  six  months  coin- 
menceJ  wlicrein  the  Crown  mitdit  repeal  llie  acts  it'  the  rcnnsylva- 
nia  Ashjmbiy.  336 

The  opinion  of  the  .Xttomey  and  Sulieitor  General, Raymond  aad 
-  orke,  relating  to  tiio  timr  v,hiri  tiic  tiirec  years  for  the  King's  ap- 
proval or  repeal  nl   the'   M.i~sarhiisi  tts  acts    commenced.  337 

Tlioopininn  of  the  .\tt(irne\  iieiiiral  Nort'ity  (f  tlie  bad  effects 
of  temporary  acts  of  .\sseml:!y  which  in  L.'-i  j  idgnicut  could  Only  be 
remedied  1  y  an  act  "t  parliuuicnt.  33d 


CONTENTS 


XIX 

Pagt. 
e 


Theopinion  of  tl,o  same  lawyer,    concerning  the  ilWa'ity  of  the    ' 
Ipgislativo  proceedings  -:  New  Vnrl-         ■     .  i,  '"^Sa-'ty  ot  the 

„,         .  ^        ""  ^  "'^'^'  »«=""«'  1^'Oard  and  Hutchica.  340 

The  o,„n,on  .f  ,he  AUorncy   and    Soli..itor.GeneraI,    Yorke  and 
Td  0,  o„  ,,,  ,,^,,,„,  ,.^  is.e.b..  Of  Connecticut  t^  .a.eW  341 
^_^Thc  op,n,on  of  Mr.  Lan..  on  an  .surpod  A.e.bl,  in  South  Caro- 

The  opinion  of  Mr.  Fane,  on  the  same  topic.  If, 

TheopuHonot  the  Afforney  and  Solicitor-General  Harconrt,n> 
Montague,  on  similar  topics  of  incompetence.  '  ''^'^•=°"'' ""'^  ^^^ 

be II;:::^:;;'  '''^^^"-->  «---^"  ^-^hey,  that  care  should 

The  opinion  of  .he  same  I.wycr,  on  the  unfi.ne.s.s  of  an  ,ct  of  the  ''^ 
Jan.a.a  A.cnhly,  as  .con..ent  .i,h  the  Queen,  p^;^)!^'^  ,,, 


'"sZv^^u":^':'''''''''^^^^^  OK  THE  cox. 
bllTl  ILJ  AbM..MBLVS  ACCUSTOMED  POWERS 

As":r;::i:!r:^:^z^'ci^'^""'''^'''-^"--^ 

-ent  ha.  in  the  n.o.her  coulry  ^''"''  ''  ^"  ""  °''  ^^^-^ 

The  oi.iiiicii  of  the     \ttni-,w,,-  i  e   .•   • 

.hoCn,wo.orp4'  '^''■'''''^''  '''""'-'''■•  '''■'^-^-t''- on 

The  (jj,i].i. 1,1  uf  .Mr      We.t    ,,i,     .1  i       r  '     " 

".««»-w,,„,..,,,,m/.::;:;,'i;;:"'-'^^' -^"-.-v 

3G4 


XX 


CONTENTS 


Pasc. 

369 


Mr.  Fane's  objections  to  an  act  of  the  tamf  "ct,  as  unfit. 

The  opinion  of  the  Attorney-General  Rawlin,  Barbadoes,  on  the 
act  of  Assembly  creating  paper  money.  373 

The  objections  of  the  Attorney  General  Northey,  to  the  same  act 
■ar    .ing  paper  money.  382 

The  objection  of  the  same  lawyer  to  act  of  Barbadoes,  as  un- 
reasonable. 384 

The  report  of  Mr.  West,  in  favor  of  a  Jamaica  act,  upon  general 
principles  of  colonial  polic}'.  385 

The  AttorncyGeiicral,  Northey's  objection  to  Barbadoes  acts, 
as  unreasonable  and  unjust.  390 

Mr.  West's  objections  to  an  act  of  the  .same  Assembly,  for  licen- 
sing lawyers  upon  the  same  principle.  392 

Mr:  West's  objections  to  an  act  of  the  South  Carolina  Assembly, 
incorporating  Charlcstown,  upon  a  new  principle.  395 

Tiie  opinion  of  the  Attorney  and  Solicitor-General,  Yorko  and 
Wearg,  on  the  uncircumspect  mode  of  continuing  laws  used  by  the 
Jamaica  Assembly.  397 

The  Solicitor-General  Kyre'.s  objections  to  an  act  of  the  Jamaica 
Assembly,  for  its  unrcnBonablencss.  401 

The  objections  of  the  Attorney  and  Solicitor  General,  Ryder  and 
Murray,  to  a  law  of  North  Carolina,  as  being  contrary  to  reason,  in- 
consistent witii  the  laws,  and  prejudicial  to  tliis  kingdom.  402 

Mr.  Fane's  observations  an  the  Virginia  Assembly,  for  relict  of 
the  College  of  William  and  Mary.  403 

The  objections  of  the  Attorney  General  Northey,  on  some  of  the 
■Virginia  acts,  in  1701.  405 

The  Solicitior  General  Ilarcourt's  reports  on  'he  acts  of  the  Ber- 
muda Assemblies,  in  1090  9  1  93-'.i  1.  403 

The  same  lawyer's  report  on  t'lc  .aets  of  the  same  Assembly, 
1G98.  417 

The  same  lawyer's  report  on  the  acts  of  the  same  Assembly,  in 
1704.  420 

Jlr.  West's  objections  to  an  act  of  tliC  same  Assembly,  as  it  im- 
posed a  duty  on  the  importation  of  British  manufactu'-es.  422 


CONTENTS. 


XXI 

Page. 


The  oljections  of  the  same  lawyer  to  Rimilnr  I  r  .u  ^ 

Assembly  '•'wj.er,  to  similar  laws  of  the  same 

423 

)i:  .'■:::!:  "''■"""°"'  °°  - "' "'  "= «'■""-  ^-".%.  - 

425 
Mr.  -^V^est's  obserTatfons  ou  the  continuancp  nf  fl,.  - 
of  the  Jamaica  Assembly.  *=^°*'""»"^«  °f  '''«  revenue  nets 

The  observation.,  of  the  Attorney  and   Solieitor-GenerJ    Ryder  ^^^ 
and  Murray,  o„  theaetsof  the  Jamaica  Assemblv,  in  175.'.      '        43, 

Mr.  We,.',   "Wrvutionsonanactof   the    Virginia    \ssemblv 
tending  to  prohibit  the  importation  of  couvict.s         '  ^'  ,,« 

mi  ,  4d6 

rri         1  442 

Ilia    bservatioiis  of  the  Snllr-ltn,.  n  1 

fbn  V        T  .  .-olicitor  General,  .hom.«on,  on  an  art  of 

2:^"""°'  ^-"■■'•'■''  '»■  ■'-- ..i..c:..f;,.:' 

l\i,    11-...  ■'  "*-■•-'"".)•  44(j 

i'loyiJ,  .jiif,Mtrai'is„r  til,..!.,,,.;,,,    .  ,1         ,,,      -'"""J    "'"I 

Y:;:;;::i::l""-y':"":^  "■'•'^■•"  ^™«'"-n,.. .,..  „/°" 

.I'Mf  ,,nu,t  eourt,si„  .lamaica  could  not  L.tMiLli  !     I   ;    ., 
proposed,  mode,  but  by  the  legislature  of  the  inland  '  ! 

parliament.  ''"■  ^"^  'O'  an  act  of 

458 


i: 

ft 


^itiiigt 


XXll 


CONTENT?. 


Page. 


I 


The  opinion  of  the  Attcmey  and  Solicitor-General  'Ryder  an -l 
Murray,  liow  far  an  act  ol  Assembly  ought  to  '<e  repealed  which 
would  endanger  the  rights  of  purchasers  under  it,  when  a  long  ac- 
quiescence has  occurred.  ^"" 


VII.     OF  THE  COLONIAL   JUDICATORIES   AND   THEIR 

PROCEEDINOS:  TllEIll   JURISDICTIONS    EMANATE 
FHOM  THE  KING,  UNDER  THE  VARIOUS  MODI- 
FICATIONS OF  THE  SEVERAL  ACTS    OF  THE 
ASSEMBLY. 

The  several  remarks  of  the  Lord  Chief  Justice,  Sir  Thomas 
Parker  and  Sir  Peter  King  on  the  draught  of  a  letter  from  the 
Board  of  Trade  to  the  Earl  of  Sunderland,  on  the  judicial  pro- 
ceedings  in  Bermudas.  •'"^ 

The  opinion  of  t'lie  Attorney-General,  Northey,  on  the  general 
policy  of  ube  colonial  courts.  ^"' 

The  opinion  of  the  Attorney  and  Solicitor-General,  Yorke  and 
Wearg,  on  the  cHablishment  of  a  court  of  criminal  jurisdiction  in 
the  Leeward  Islamls.  463 

Tl'c  opinion  of  the  Attorney-General  Murray,  on  the  jurisdiction 
of  the  Jamaica  courts.  ^'^ 

The  opinion  of  the  Attorney  and  Solicitor,  Byde-  and  Murray, 
on  the  jurisdiction  t.'  -lie  Bermuda  courts.  471 

Mr,  Lanili'.'f  opinion  on  the  courts  of  South  Carolina.  476 

On  the  courts  of  chancery,  iu  Burbadoes,  by  the  Atto'-ncy- Gen- 
eral Northey.  479 

The  opinion  of  Mr.  Jackson,  on  the  power  of  the  Governors,  as 
Chancellors  over  idiot.s.  481 

A  second  opinion  of  the  same  lawyer,  on  the  .-anic  subject,  in  a 
letter  tc  ll.c  Secretary  of  the  ''{oard. 

The  opinion  of  the  -Vttorncy  and  Solicitor,  Ryder  and  Strange, 
on  tiic  erecting  of  a  court  of  e.'iclieciuer  iu  the  colonies. 

Tiic  Attorney-General  Noitlny's  opinion,  on  an  act  of  the  Bar- 
badocs  Assembly  to  dock  the  entail  ol  an  estate. 

The  opinion  of  the  Solicitor  General  Thomson, on  the  same  sub- 
ject. 


482 
484 
485 
486 


CONTENTS. 


Thoopinionof  the  AttorneyCener  '  NnwJ.o„        .u 
jcct  orthej,  on  the  same  sub- 

TLe  opinion  of  the  Solicitor-General  T    F    ai      i 
subject  F.  Aland  on  the  same 

Tl,e  opinion  of  the  Atto.T,ey  and  Solicitor  General  Yorke  .nd 
Talbot,  tl.t  no  fine  levied,  or  recovery  suffered,  [i  England;  of 
and.  lyng  .„  t  e  plantation.,  can  o,,..at.  effectually  unles.tLe 
Las  been  so  author...  by  ...ts  of  assen.bly  :..  the  colonies 

peJt:z:^:r^-'-'---ntheri,htofap- 

The  opinion  of  the  .«ame  lawy,  -    nn  the  san.e  topics. 

The  opinion  of  the  Attornev  and  Solicitor  Rv,In,       ,  Ar 
thecommission  granted   to    1 .     1    '™' ^  .'^'^'^  ^"'^  ^^''^-ay.  oa 
York  ^^  ^  ^''  '^^  ^tief  Justice  of  New 


XXIU 

Page. 


4  8C 


487 


488 

4SS 
489 


i"  ^.™.,,  a  ..ope,,.,,,  .'rz::;;!;:;;;:^- ''™-»'»«'.  ^,_ 

Mr.  Fane's  opinion  on  act  of  the  New  Vnrl-    a         .i      , 

peal  therefrom.  '        ^"  ''"'^""''  '"^^  '»'i  '^P- 

497 


49G 


VIII.     OP  THE  ADMIRALTY  JUIUSDICTIOV 
Ihe  opinion  of  the  Attorney  General  Northoy.  '  '       ,,, 

The  op,n>on  of  of  the  .san.e  lawyer,  on  a  sin.ilnr.subjoct  in  170.    -n. 
The  opm.on  of  the  Advocate-General  Sir    J  ,1  /' 

«ame  jurisdiction  '      '  *^"''°  ^''''^^'  °"  '''« 


maa. 


■'|r.  Fana.  opinion  on  the  Admiralty  Jurisdiction,  in  the  Baha 


50-1 


eor 


m 


;ni— ■«  iii^i 


Xxiv  CONTENTS. 

Tlie  AttorncyOeneral  Northoy's  observations  on  some  acts  of  tlic 
Barlailucs  Assoinhly,  us  iiicons;!<toiit  with  the  Admiralty  Jurisdic- 
tion. 

Mr.  "\Vc=t  e  ojiinioD  en  tlie  Admiralty  Juri^sdictiuu,  in  the  plan- 
tation.s. 

Mr.  Stralian>  opi:iiou,  on  the  power  of  collecting  admiralty  due", 


Page. 


507 


510 


in  Uermuda. 
The  oj 


iiiion  o 


f  the  Attornov  and  Soiicitor-(Jenrr:il,   Yorkc  and 


Wearg,  on  the  trial  fur  a  inurc'er  cnmmittcd  at  sea. 


TI 


lie  oniiiinn  I 


.f  tlie  .\dvocate,  Attorney,  and  Sulicitcr-' ieneral,  iu 


17  li'i,  on  the  same  [mint. 


525 


The  opi 


nion  0 


f  the  AttoiiiPV  and  Solicitor  General  of  Barhadoc.", 


Cbiltim,  and  Kawlin,  on  the  trial  of  pirate.s  there. 


327 


Tl 


le  oiiniin'.i  nl    till' 


Attorney  and  8oiieitor  (!.niei-al,  Northey  and 


Thompson,  on  the  ]iardon  of  pirates,  in  the  eoionit 


Tl 


le  nifinion 


nf    til,'    Atl. 


rnev  licni  ra 


1   Northry,  on  aj'p'al.s  from 


the  adnnriiltv  rdinls,  in 


till  eolouies. 


51 


:li,'  a'lMnr:ilty  ii 

The  (.i.min.i   n|    the  Adv(H'atc<-!rneral,   Sir  Natiianiel  I.loyd,  on 

'  532 

th.    ~;uni'  snlijr.  t 

The  .\(h  MMlrt;rner:d,  Sir  dchn  Cooke's  opinion,  on  the  sri/nrn 
of  a  Spanish  brigantinc,  on  the  lotrli  -ea,  hy  an  unenmmis.sioucd  vcs- 
«1.  '-'^ 


ON    lllK  NAl'loNAI.   FISIIKUIIN, 

The  opinion  ofthu  AttorncyOeneral  ItiyneMid,  'n  th.' luads  of  a 
patent  for  c.irrying  ou  the  fi.shory,  in  1721.  533 

Mr    Kano'i*  opinion  on  the  duties  on  wuule  tins.  535 

The  .\tlorney  (Jeiieral  Yorke's  ojiinion,  on  the  powcrof  the  ju.Hti- 
CCS  of  the  peace  in  Newfoiiiidhind.  536 

The  »nme  lawytr'8  opinion  on  the  powers  of  the  neverul  officers 
at  Nuwfoundlun<i. 

The  opinion  of  the  Attorney  (lenerai,  KyJer,  on  the  King'ii  pow- 
er to  erect  courts  of  justice  ut  NewfoundlniMl  >"1 ' 

The  opinion  of  the  Attorney  <Jenorn!,  Ryder,  that  the  King 
oouia  not  irivo  power  to  e»tabli»L  >  criminal  court  at  NewtouuUland. 
but  under  the  gre-it  seal. 


CONTENTS. 


XXV 


f 
I 


The  opinion  of  the  .ame  lawyer,  in  pursuance  of  the  former,  that 
the  K,,-^'  MK,y  instruct  his  ^.ovcrnor  of  Ncwfouudland,  to  cause  to  be 
exectcd  su.'h  person,  as  uiight  b,.  convicted  of  capit,-.!  crimes,  ex- 
cept  triMsiin. 

The  opinion  „f  the  Advocate,  Attorney,  and  Solicitorfieneral, 
Ilav.  Xort.u  and  Do  (J.vy,  i,„u  far  the  King's  power  wa.  limited 
at  Ncuh.u.i.lh.nd,  l_\  t!,,'  statute  of  Fvin-  William.  545 

The  opinion  ,if  the  Afonicy  and  Solicitor  General,  Sawyer  and 
Finch,  on  the  Eastland  and  tucenland  Companies.  545 

ON  COM.MKRClv 

The  opinion  of  the  Solicitor  General  Thompson,  on  the  King's 
prerogutive  of  j  rohibiting  his  subjects  from  going  abroad.  54b 

Mr.  WcMs  opinion  upon  establishing  liritLsh  manufactures  iu 
France.  ^^^ 

^The  opinion  of  the  Attorney  GenerM    Maedonald,  how  far  the 
King  may  restrain  his  snl  jocts  from  going  .-broad.  554 

The  opinion  of  the  Attorney  General  Yorkc .  r-lating  to  English 
subjects  being  engag,,!  m  ll.e  Kast  India  Company  of  Swe.Jen.  557 

Mr.    K.-MM-  ..pinion  ;,.  to  the  ^ri/ing  any  marhinerv,  which  w.-re 
de.signe.l  .0  be  exp,„„.|,  ,,mI  «|„rb  u.rc  used  ,n  thc'Hnglish  man 
ufaeturis. 

,,.,  SCO 

i  I.e  r.  pnrt  of  the  v  „.le  ju.Iges  upon  the  memorial  of  the  African 
(-onipariy,  touching  iJ.e  uwicnlo,  m  ICfJ.  r.g, 

The  opinion  of  the  Attorney  and  Solicitor  General,  'he by  and 
bomer.«,  on  the  Sprjuish  trade  in  ihr  \Ve>t  fiHlies,  502 

The  opinion  of  the  At>orneyandSo|K„or(;eneral,    Trevor  and  ^ 
lla«It■^  on  carrying  logwood  to  Venice,  whclher  legal.  -,03 

J{.  I  ort  of  the  Attorney  (;„„eral.    Nortloy.    on  preserving  the  ' 
ngJKs  ol  IJriiish  built  sl,i|,M 

J  he  opinion  u.  the  .Solictor  Generd  Thomsou,  on  Spnnh.h  «hips 

trading  to  the  British  islands  *     ,,„ 

.,     „.      .  566 

i'l  r.  U  e*t  8  opniioe.  on  the  «amo  subject  5gy 

1  he  o|iinioii  of  the  .\llorncv  Oennml  V.,,il._.  .1 

,  ,  V  "••"urw  Aorthcy,  on  the  iniiMirtation 

Of  naval  storct  from  IJolhind. 

Thcopinion  of  tho  Attorney  .nd  8olicaor  .J.neral,    YorKoand  ''' 
Woarg.ou  the  KHmo  topiot. 


XKvi 


CONTENTS. 


The  opinion  of  the  Solicitor  General  '"  ntague,  on  Irish  ships 
carrying  barley  from  RochelV''  to  Lisbon,  in  1703.  570 

_    Mr.   Fane's   opir"on  oa  ihe  carriage  of  Canary  wines  directly  to 
the  British  plantations.  5iV 

The  opinion  of  the  Solicitor  Genernl  Eyre,  on  granting  passes  to 
ships,  contrary  to  the  act  of  navigation.  573 

Mr.  Fane's  opinion  on  the  King's  seii-ing  vessels,  trading  against 
law,  in  the  Briti.sh  I>lands.  574 

The  opinion  of  the  Attorney  General,  Yorke,  on  the  commence- 
ment of  d'ties  upon  importation.  570 

The  opinion  of  the  Attorney  and  SolioitorGenrrai,  Kciiip  and 
Smith,  at  Now  York,  on  the  distribution  of  forfeitures,  uiidiT  the 
acts  of  trade.  570 

Tlio  ti]  iiiion  of  the  Attorney  (ioncral,  Lrvinz,  on  the  importation 
af  painted  stoneware.  579 

Th(>  opinion  of  Sir  Williini  Jones,  Sir  F.  Winninaton,  and  Mr. 
J.  King,  ii  !  )rt">,  on  tho  statnti;  'Jl.<t  .lanic.,  of  niono|)f>li.s^  liovv  far 
an  attion  v.ould  lir,  in  lije  Hariiadocs  conits,  fur  seizing  goods  of 
tlie  Atrican  Company.  5S0 

Tiic  opinion  of  tiie  Attorney  (Jencral,  iSawyer,  in  1031,  ooncern- 
ing  intcrlo[iirM.  5Si 

Ttie  opinion  of  tlio  Attorney  and  Solicitor  General,  ITarcourt  and 
Montajiuc,  on  tiu'  cliaiig'.s  cfl'ectcd,   hy  theimion,  in  trade.  5S2 

The  opinion  of  tlio  S'llieitor  (!<  nerai,  on  the  .\ni('ri<'an  act  estab- 
lishing tin' casi   ot  prize,  diiring  till'    »ar  of  (^iii'cn  .\nne.  5S5 

Thi"  o|iininn  ot"  tlir  Solicitor  (irniTal,  Thomson,  rtlatiiig  to  a  duty 
laid,  ill  Cwolina.  upon  Kiili^h  roninioditiiw.  GSO 

The  same  lawyer's  opinion  on  rjioosing  a  tnnsiircT  of  the  factory 
at  Li.slion.  i'87 

Tho  opinion  of  the  .\ttnrncv  (itiicral,  ll\der,  upon  ihccasc  of  di.s- 
tressed  Krigii.sh  soanicn  at  t'adiz.  588 

Mr  I' ii.i''^  o|iinion,  on  tlic  priviii'i'i-s  of  tho  Uussia  eoinpany.  car- 
ry inj!  on  a  trad*  Ui  Armenia.  500 

The  opinion  of  tho  Attorney  and  Solicitur  (ieneral,  Ryder  and 
Strange,  on  the  act  of  G  .'orgi.!,  ah'^ul  trade  with  l!  <'  Inihann.  591 


cormiTfTs. 


xxni 


Mr.  West's  opinion  on  .ome  acts  of  Sonth  Carolina  for  rcgnlatinf"^'' 
the  trade  with  the  Indians.  * 

Mr  West's  opinion,  relating  to  Custom  Hou«e  officers  being  con- 
cerned  in  trade  and  ghipping. 


592 


599 


The  report  to  the  King,  of  tho  Attorney  and  Solicitor-General, 
Northoy  and  1 1.onipson, ...  a  proposed  charter  to  a  corporate  body 
for  insuring  ships. 

The  ..pinion  of  the  Attorney-Goneral,  Levinz.  on  the  King's  pow- 
er to  gn.nt  a  patent  for  making  black  popper  white.  009 
The  AUornoy.(iencual  Norlhey'«  opini  ,  on  foreign  coin.                610 


599 


OF  TFIE  LAW  OF  NATIONS 


Th 


c  opinion  of  Sir  L.oline  Junk 


Tl 


ns,  on  Captain  Cook' 


s  case. 


10  .)[iini.)n  of  IVii-r,)rs  K 


611 


les  :ir..  t.i  ho  [ii  nisiici  in  Kn.'l.ui.l 


ton  and  Lh.yd,  how  break,  ri  of 


trea»- 


Thi!  opii.ioii  of  thi'  sai 


(316 


missions  t.)  tTiiizc 


iviii;uis,  on  t'lo  ofTi'-icoof 


:i,i:.'iiiist  tiji'  K 


accepting  com- 


ing s  .•lilies. 


Tl 


"•"'''"' '■'!"■  Adv,H.,,te(;e„e,ul,  C„„k 


upon  I'lirluiral,  in  ITd.i. 


c,  on  making  reprisals 


R 


lie  "pini.iii  .if  tii,>  .\tt^ 


'V "''.    upon    til.,   pellll,,,,     ,,f 

been  taken  l.j   lli,.  I),, 


'rni'v  Mii.l  Soiieitor  ( 


•'in.ril,  X.rtlicy  and 
iT.il  nier.tiants,  whose  ships  had 


rep.irt  of  .sever.! 


iatis  on  the  scimro  of  Tl.itisl   vcs.ods 


liy  tl"    S,,:i„i.-,r.I>,  in  ||„.  We.-t  In. lie 

■ly  A,ivacnte.()enoral.  L.to.  Simpson's  opinl,,,,,  „„  „„  , 

"f  ""■'•">•  "f^' ""eree«„|,   |'i,..s.,a.  '     "' 

Tlio  Aii.o.  ate  (iciicril     1),-    I'.,, I       .    .i  i 

trad,ng«:.h  Algiers.  '  '''•'''' '"'"''^"'^"^  ''"--« 

T.,.^  .,,;nion  of  the  Adv ^S   Attorney,  and  Sol,e,t,>r  (l.-ncrai, 

-.l,K..o,,,  ••'•;•'  Murray,  1,,,.  f.ir  .. Ivag..  .as, 1„,.  ,.,,,. sp.ai,.h 
*'"•■'""'""-'•'••'-•'-" "•'-n,|,..l,nN„r,h,V„|.,„,        ' 

TI.-T..i.on  of  „,..  A,torn..y  and  Sol....,„M;..„..al,  V.irk  ,nd 
'^■'"■"'■"■" ^'>— f"""^-'>"<"-..ral„v,,n,o..6      ' 

,,■'''"■"'"■"'"   '•'  ■^'"— y«"d  Solicitor  General,    Hy,,,,   „.., 

Murray,.,,,  the  sanu'snljoct  .>'<■.,  .nn.l 


CIS 

1 1 1 9 
C,2Q 
C21 
G23 

C25 
625 


III 

:  i  ii 

11 


• 


XXVIU 


CONTiiNTS. 


Page. 
The  opinion  of  the  Attorney  and  Solicitor,  Norton,  and  De  Grey, 

628 

on  the  snnie  sulijcct. 

The  oi.inioii  of  tin;  Advocate  General,  Sir  James  Marriott,  on 
the  samt:  subject. 

The   opinion  of   the   Attornry  licnora)    I'ratt,  '  (lucstion 

whether  Guadalouiie  became,  in  ITr.'.i,  a  Ihitivli  1    •  •....  639 

The  opinion  of  the  Solicitor  (leiu-ral  Yorke,  on  the  same  legal 
topics. 

Tiic  opinion  of  the  Attorney  and  Solicitor-Genera'  Trevor  and 
IlawK-s.  how  far  Scot(  hnieii  wcr  aliens,  and  how  a  Lieut^aut- 
Governor  could  be  tried  for  misdemeanor.  M3 

Tlie  opinion  of  the  Attorney  (icneral  Northey,  on  the  questions 
of  alienage,  and  trading  with  her  Majesty's  tneiiiics.  615 

The  opinion  of  the  Attornry  General  Norton,  whether  the  French 
and  Spaniards  who  remained  in  the  ceded  couutiies  after  the  peace 
of  17»J3,  were  aliens  or  subj'  cts.  *«» 

Of  the  lei'il  <  ffeels,  resulliiig  from  the  acknowledged  independ- 
ence of  the  Iniied  State.-,  by  Gee  Chalmers.  G48 

The  opinion  of  Sir  Lh'yd  Kenton,  in  1783,  on  the  .piesticn,, 
whetiicr  the  goods  imported  from  the  ('nil.'d  States  must  pay  alien 
duties,  and  arc  subject  to  the  regulations  of  tlie  acts  of  navigation.  088 

The  opinion  of    'ir  William  Wynne,  in  wliieh  tlie  .\:t(  rney,  and 
Solicitor-tJencral,  Ardenand  Maedonabl,  concurre.l  on  the  state  of 
AmiTican  ships,  after  tlie  iiidep,  ndeiiee  .f  the  VmuA  State.-.       •       090 
The   opinion    of   the   Aitormy  General,   Ardeii,  in  i;-o,  outho 

.1  G91 

American  trade. 

Di.,cu.ssions.M,  the  ,,,n-stion,  "whether  l„hablt,,nt>  of  Ihe  United 
States,  born  th.Mv  before  the  independence,  arc,  on  comii.g  tn  tins 
kiniidom    (o  be  loiiMJcrcd  as  natural  born  subjects V     %  a  liar- 

.  692 

rister. 

Surinam,— diucourso  of,  b^  Mr.  J    l>c  ^\  itl.  *'» 


PREFACE. 


Ma 


NV  years  of  ajjitation  and   rovolntion  have  elapsed, 


since  it  oceiirred  to  me,  that  the 


Laws  of  Eiijrland  were  hi)n 
relate  to  our  (.'olonies,  Fish 


eoinnientaries  on  the 


•en  on  such   le_L:,iil   topics  as 
eries  and  Conunerce.     The 


commentator  was,  prohi.hly,  nnal.le  to  ohtuin  materials; 
as  the  appeals  from  our  forei<;ii  dominions  lav  to  the 
King  in  his  Council,  and  n(.t  to  \\\o  Ki„^  ja  hj.^  Bench. 
There  have  heeii  scarcely  any  reports  of  cast's  which 
were  decided  on  skIi  appeals,  and  Wi>re  •ic.-essihK.  to 
research;    hut,  if  such    app.'als    ha<l    lain   to  the  K 


vr    1 


in   his  Bench,   then   there  would 

])orts  laid   hciiirc  the  i.ul.lic,   wIumkc  tl 


ing 


leen   iuan\-   re 


It    eonuu.'ntator 


<»n   the   la 


ws    o 


u-iiai    '    uiiuiil 


a\e   drawn,    witi 


1    an 


incpiisitive  spirit   .■uid  a   lil.eral   hand. 

Su.di  uen-  my  convictions,  wlnlc  I  was  diir^rinu; 
llir.Mi;rh  tlie  hool.s  of  the  Ho  mm.  .-.  Timui:.  and  other 
«le,.ositnri,.s  lor  tlu-  nt:.te,in!.  ,,!'  ni,\  Puliti.al  Annals 
|'''«''<'  H.'v..hed  ('..lunies,  uln.l,  |  .,|1,,vd  ,.,  ,|,..  ,.uhiic 
in   17S(»^,  ,u.d  I  ^^u^*  tlni-  in.hice.l   u,  take  eonies  nC  o„.|. 


ft 


I      ;  ! 


I  ill 


,-..U-; 


i 


1 


2  PRErACE. 

laAV  opinions  a?  appearoil  in  the  course  of  my  researches. 
Those  copies  swelled,  during  inv  proi-ress,  to  ii  handle  ; 
and  it  seemed  to  me,  that  it"  they  were  difxested  under 
heads,  they  might  somewhat  supply  the  juridical  de- 
fects, wiiich  have  been  already  intimated,  ra*'  .t  than 
nhown. 

It  became,  at  length,  known,  that  T  had  innde  sueli 
collections  of  Idw  opinions 'r  anil  jirofcssioiial  gcntlcnKMi, 
setting  out  to  tlie  west  and  to  tlie  rasf,  to  execute  va- 
rious ollices  in  the  Judicial  Departments,  desired  to  de- 
rive some  ra',.-^  of  knowledge  from  the  deliJR'rate  opin- 
ions of  their  elders,  wlio  had  risen  to  eminence,  as  nuich 
bv  their  integrity  as  their  talents. 

Such  a  limited  use  of  such  opinions,  was  .said  to  be 
penurious;  and  I  was  urgei  to  send  my  coUeeticms 
to  the  press,  as  the  properest  mode  of  making  snch 
hae  useful  to  the  many  as  well  as  to  the  few; 
it  was.  indeed,  aj>parent,  that  such  documents,  lying 
ficparateil  in  different  depositories,  and  oltscured  by 
meaner  matters,  were  ol'  \cr\  little  value,  iind  of 
less  instr"ction  to  the  (Joveniors.  as  tliey  li;id  al- 
ways be(>n  to  tlie  goMTued  :  the  \ fry  l)ep;i'-tment.'< 
of  State,  which  |M)ssesse(l  such  unknown  trciisnres, 
could  neither  be  much  wiser  lor  tb^ir  iii'con-cioii.s 
possession,  nor  in  am  inauuei'  rcguhited  in  tlieii'  pnic- 
lice  by  unknown  preceilerns  :  ■■  lili  in  i \t  iimi  t-s-st'  ct 
non,  iij>/iiin !•(  "  WMs  !i  niii\ini  \ery  iijiplic;dile  to  (he 
statesmen  who  Idled  those  depiirtinciit-.  and  could  not 
pursue  aiiv  settled  jx'lii'v,  by  tiiose   oeat    iis  wliicli  had 


PREFACE. 


liiihtod    their    predecessors    on     thei:     official    course. 
Owiii-  to  all  tliose  considerations,  T  have  been  induced, 
at  the  end  of  ni=iny    years,  to  give  publicity  to  those 
juridical  opinit)ns,  in  the  hop-i  of  doing  some  good  by 
their    ])ublicatioii,   while  no   object  of  any  use  can  be 
gained   by  their  ro-i<-eaIinent,      Those  opinions  will  do 
honor  to  rlie  huvyiTs  who  gave  them,  not  only  as  thoy 
•  lisplav  a  ])erllM't  koowledge  of  the  several  subjects,  but 
evince  a  deliberation  aixl  candor,    which  are  equal  to 
(lieir   skdl.      Tiiose   opinions   Avere   often    given,  after 
seeing  agents  and   hearing  counsel,  and  sometimes  de- 
livere.l  witii    many  (pialifications.  when  the  cases  were 
either    imperfectly   stated,  or    the   facts  uncircun.stan- 
tially  understood.     ()„  perusing  the  following  opinions, 
the  moi-e  judi.'ious  loader  will  be  ai)t  to  cry  out :    No 
country  enjoys  such  a  college  of  civilians,  as  the  Pre- 
vogative  Court  supplies-noither  (Jreece  nor  Rome,  iu 
tlieir    best    days,    p-o,luced  such    municipal  lawyers  as 
liave  illuminated   i    is    nati..n   b\    their    learning;    ani- 
'""^-1  the  peopk.   hy    their   elocp.ence ;    and    dignified 
then-  prolcsHon   by   tlieir  probity. 

•t  1'^'^  iH-cn  my  endeavor  to  arrang,,-  the  followin-^ 
-1"-"""^  a.vonling  to  nu  limitc-d  notions  of  a  jusl 
""'"-^■'  '""'•  "'"'»  i'  i^  reroll..,,.,!,  „„t  „,  .,,,,t  a 
.)'"-(    MS    Sir    .Matthew     ib-d...    a..knowledir.d    his    i„a- 

'"'">     •"  '••■•'"'•'•   I'i-^  ''nalysis  of    (he  law    to    ;,„  .,,,t 

I"ui<'.il  rrirtb.wl    ,.,..1.,.,.;,,,,   ,.,,       ,  , 

^'"-^  "'^'^'  perhaps,  tJiiuk  with 

less  sevrniy   of  my  uuskillfulness. 


m 


^' 


(, 


4  PREFACE. 

This  multifarious    sulyect  may  be  properly  digested 
imder  the  foUowiiif^  heads: 

First,  The  King's  Prerogative  abroad  : 

I.  Of  his  Ecclesiastical  Authority ; 

II,  Of  his  Civil  Authority.  This  last  may  be  again 
subdivided  into  four  divisions  :  (1.)  The  King's 
rights ;  (2.)  The  King's  power  of  taxation  over 
conquests ;( 3.)  the  King's  Grants;  (4.)  An  anom- 
alous exclusion  of  the  King's  Prerogative,  in  the 
appointment  to  one    office. 

SecomUtj^  Of  the  King's  General  Jurisdiction  abroad. 
21iir</Jij,  Il.)\v  I'ar  the   King's  subjects,  who  emigrate, 
carry  with  them  the  E:iglish  law  : 

I.  The  Conunon  Law ; 

II.  The  Statute  I-aw. 

FuiirthJi/,  Of  the  Colonial    Constitutions.    This  head 
may  be  sulxlivided  into  six  divisions: 

I.  Of  the  Governor; 

II.  Of  the   King's  Council ; 

III.  Of  the  lvepn'sentati\e  Assembly; 

IV.  Of  the    want  of  soveiciguty  in  t'le  Colonial  Leg- 
islatures ; 

\   Of  tile  \arious  iiiodiliciitions  which  the  Constituted 

Assemltly  admits  ; 
\  L   Of  till'  (Jolmii;!   Judicatures. 
J-'il'lhlii.  Of  tiic    A'hiiii'.ilt\    .lurisdictions. 
Sixth! ;i.  Oftlu'  National   Fisheries.  ' 


PREFACE. 


Seiienthhj,  Of  Commerce :    This  head  may  be  subdi- 
vided into  four  divisions  : 

I.  Manufactures  set  up  abroad  ; 

II.  The  Acts  of  iNavigation  ; 

III.  Miscellaneous  matters  of  Trade  • 

IV.  Of  Coins. 

Eijhthhj,  Of  the  Law  of  Nations.    This  hc.id  may  be 
subdivided  into  two  divisions: 

I,  Treaties  ; 

II,  Ino  l.^gal    effects   arising   from    the  direct  inde- 
pendence of  the  United  States. 

Superior  to  all  those  Colonial  Jurisdictions  was  the 
King  in  his  Council,  r.t  Whitehall.  During  the  first 
age  of  the  Coh.nies,  from  KiOG  to  104(1,  the  whole 
superintendence  of  the  King  was  exercised,  both  execu- 
lively  and  legislatively,  by  the  Privy  Council. 

An  age  of  innovation  and  rei'oiin  now  began  ;  and 
the  jurisdiction  o»  the  Privy  Council,  within'  the 
realm,  as  to  person.s  mid  property,  was  regulated  by 
Parliament.* 

But,  whatever  may  have  been  taken  away  at  the 
sad  commencement  of  th."  civil  wars,  was  assmi.e.l  by 
the  Parliament,  which  ex.Tted  every  a.t  of  sovereign- 
ty over  the  coloniest.  When  the  ::.,.narehv  was  r>- 
established,    in   KiSO,    the    Kings   ancient  jmisdiction 

•1*3  Ch.   I,  eh.    10;     1   JJlacks.  C'uiu.   -30,   -31, 

tSec  ,1,..  s..vor,aI  act.  iu  .Scobbdl,  win.h  are  tl.c  prototypes  of  tb„ 
acts  1)1  iiavigutioii 


i-ti 


m 


■  t" 


m 
1 


I 

i.' 


6  PREFACE. 

over  the  trans-atlantic  colonies  was  restored,  with  the 
King's  government.  But  the  plantations  had  now,  hy 
many  accessions,  grown  into  bulk :  and  tlie  King's 
superintendence  became  still  more  necessary  and  fre- 
quent, for  preserving  the  sovereignty  of  the  C-rown, 
and  the  subordination  of  the  colonies.  A  Council  of 
Trade  and  Plant.itions  was  now  establi.><hed  ;  coiisisting 
of  an  indefinite  number  of  respectable  pei  Jiis,  who 
were  not,  however,  members  of  the  Privy  Council.  Of 
that  Council  of  Trade  was  Sir  Josiah  Child,  who  was 
then  a  brewer  in  Southwark  ;  and  is  .still  remembered 
for  the  solid  sense  of  his  connnercial  treatises.  This 
Council  was  abolished  on  th)  12th  of  March,  1574-5, 
when  the  whole  aflairs  of  Trade  ami  C  m'w^'.  were 
placed,  by  th(^  I'^ing  ^^  declaration,  in  Council,  under 
the  jurisdictioi  of  a  Committee  of  the  Privy  Coimcil, 
which,  during  the  various  changes  ol  v.uying  times, 
still  retained  its  colonial  authority  of  ancient  times. 

The  distres.ses,  jjoth  of  oui  commerce  and  our  colo- 
nies, during  the  revolution  war,  created  discontent : 
and  this  discontent  and  tho,<e  distresses  produced  out- 
cries and  complaints,  whicli  jtrcdisposcd  the  nation  for 
some  change;  such.  then,  was  the  oi'igiu  of  the 
Bo.MiD  OK  Thapk  AM)  I'l,  \\T \  iMONs,  (luriug  tlic  vcai* 
1()0(5.  By  a  couunission,  umlcr  the  (Jrc.it  Seal.  ,i  no- 
bleman for  President  and  several  geiitlenieii,  who  were 
eminent  for  their  kuowleilge  of  comuierce  and  of  col- 
onies, were  ap[)ointcd,  with   various  [lowers,  for  super- 


PHEFACE, 


intending  and  promoting  l)oth.*     During  many  years, 
tlicir  siiporintondenco  ovor  the  plantations  was  vigilant 
and  incessa:  •:;    ))ut  whsit  could    .such   a  hoard   do   for 
promoting  Comnu'rce  (jr  Fisheries,  more  than  removing 
ob.structions  o.it  of  the  way,  by  their  advice  and    aid, 
it  is  not  easy  to  tell.      They  were  either  u.seful  or  use- 
less,   like  other  establishments,   according    to    the    ti.se 
that   was    made  of  them.      If  a  conceited,  meddling, 
forward    person    happened  to    bear   sway  a.s  Secretary 
of  State,  he  deprived  the  Board  of  its  jurisdiction  and 
usefulne.s.s ;     if    a    person  of    con.sequence    and  talents, 
happened  to  pr(>side  at  such  a  Board,  it  became  exceed- 
ingly adva.-tageous  to  the  State,  by  investigating  colo- 
nial titles  and  complaints,  by  assisting  negotiators  with 
their    informati.ms    and    advices,    in    additi.m    to    the 

•Tlie  plan  of  the  Bo.nrd  of  Trade,  during  the  rei'^r.  of  King  Wil- 
Lam  and  Queen  Anne,  seems  to  have  been,  to  appoint  two  noblemen 
and  eight  commoners,  as  Commissioners   for   executing  the  two  great 
objects  of  the  con>mission-tl,o  promoting  of  trade   and    the  superin- 
te..d,ng  of  tho  plantations.       The  members  of  the  flrst  Board  were  ■ 
John,  Karl  of   Bridg,  water;    Ford,  Earl  of  Tankerville;    Sir  Philip 
Meadows  who  wrote    '  Ob.servatiors  concerning  the  Sovereignty  of  the 
Seas;     A\  .ll.am    Blai.hwajt,    who    had    beon    Secretary    of    '..e    Oi  > 
Council  of  Tra.le  and  Plantations,  a.ul  ,"ed  Auditor  of  colonial    rev^ 
onuo;    John  Paloxfen,    the  Chiof  Justice's  brother,    and   a  n.erchant 
m  the  nty,  who  pubii,shod  a  tract  on    Trade;    tho  well  known  John 
Locke    who  wn,to  on  the  coinage;     Abraha,,    ]1,11,    whose   collections 
on  trade    and  coh,nios    are  in    the    Bri.i.h  X  ,.oum ;     and   John  Me- 
tln.en,  who,    from    IG'.iO    represented  the  Dev.z  s    in  Parlian„.nt  •    he 
was  sent  to  Portugal,    as  Amba.ssador  Extrao-  .inarv,    f.r  the    .pe^iat 

r'7'' ":'":'"  "^  """'■""'■'''•  '^-"-  -"'-i  <•-  .,,1.  of dL;,; 

tJcr,    I/O.,:     li,.  di,  (1   about   the   war    '     ,",       Tl.  ,   n       i     em     j 

■'■^'^        '•^-     ^ "*-'  Board  of  Trade  iTa» 
a  proper  nursery  of  such  minister. 


i>  'i 


-4 


IF 


il' 


8  PREFACE. 

usual  occupations  of  such  a  department.  The  first  com- 
mission specially  rcuommendod  to  the  attention  of  the 
Board,  one  of  iho  most  diflicult  of  subjects — the  poor, 
the  poor-rates,  the  ]ioor  laws  ;  a  subject  of  such  compli- 
cation, as  balHod  tlie  united  labors  of  the  ten  Commis- 
sioners, and  seems  to  defy  *^lie  wisdom  of  Parliament. 
It  was  probably  intended,  that  the  Board  of  Trade 
should  h(i\o  power  to  administer  an  oath :  and  the 
Solicitor-deneral.  Tliompson,  gave  his  opinion  to  this 
eft'ect : 

8iR  :  Tn  obedience  to  the  commands  of  the  Lords 
Couuiiissioners  f^r  Trade  and  Plantations,  signified  by 
yours  of  the  -Itli  instant,  I  am  of  opinion,  that  the 
clause  in  the  (Mtinmission.  wliich  is  under  the  Great 
Seal,  does  cnijtower  thv  Cominissioners.  or  any  three 
of  them,  to  ;i(biiinister  r.u  oath  to  witnesses,  who  .shall 
come  bi  fore  thrin  to  be  exaniined,  toii''!iing  any  mat- 
ter uieiitiiiiicd  ill  tb(^  eoiumission  to  which  that  power 
does  ri'late.  1   am,  >S:e., 

""Vin.  Pojiple.   I>(|.  Wm.  Thompson. 

February   C    17 P. '-20. 

15\-  a  sj)riial  clause  of  tln^  lirst  connnission,  the 
l)oai(l  \sas  ciiiiiowcrtd  to  call  for  the  advice  and  aid 
of  tbe  Attorney  and  .'>olicitor-(ienerai.*  The  following 
()|iiiiions  will  sliow.  tliat  soon  alter  tbe  revohition,  the 
Miiiistiy    called   upon   the   Lord  Chief  Justice  llolt,  for 


•  Tlic  law  iilUfcrs  WI.TC  cacli   ullnwc^l  a  HtatiJing  fee  of  a  hundred 
guiiirnK,  willi  ti'ii  j^uiiinah  tn  imli  of  tlioir  c'l«rk». 


PREFACE. 


9 


his  advice ;     but  he   dops    not    appear,    when    acting 
in    this   character  of  adviser,    in  his  best  light.      The 
whole  Judges  were  called  upon,    soon    after  the  same 
epoch,   to  give   their   advice  as  to  the  legality  of  the 
a.9nento  trade,  though  it  must  have   been   the  magni- 
tude of  the  object,  more  than  its  ditticulty,  which  re- 
quired ."^uch  mighty  knowledge  i      the  lights  of  West- 
minster Hall  enjo;yed,    tf>  see    that  such  a  trade  with 
the  Spanish  colonies,  in  Spanish  ships,   wtis  inconsist- 
ent with  the  acts  of  navigation. 

When  treaties  of  counnerce  were  in  cijntemplation, 
during  the  year  1709,  the  Board  of  Trade  was  em- 
pcwered  to  call  in  the  aid  of  the  King's  Advocate- 
General.  The  followiug  opinions  show  several  instances 
-"■  -  joint  advice  of  the  Advocate,  the  Attorney  and 
Solicit  .--General,  which  was  asked  and  received,  by 
the  King's  ministers  :  what  other  country  can  boast 
of  Jm-ists,  with  such  .y.i_ut  of  knowledge,  and  reach 
of  thought,  as  such  joii.>  a(ivice  exhibits! 

Soon   after   the   accos-nn  of  George    I.   the  acn  of 
the  Colonial  As.semblies,    winch    were  to  be    reviewed, 
l)«came  extremely  voluminous  ;    the  standing  fee  of  a 
hundred  guineas  had  cea.sed  to  be  any  ot)ject  to  the  At- 
torney and  Solicitor-Genn-nl  :    and  i(   be.>.nne  njiparent, 
that  advice  wa.s  at  length  asked  on  particular  Inisiness' 
of  such  magnitude,  av.  a  fee  of  an  luni.h-e.l  guineas  was 
quite  unequal  to  the  aftairs    and    i  ,.-ome  of     "  e    law- 
officers  of  the  crown,  fro-  -  other  sources.      "        .   the 
progre.ss  of  business  led  ou  to  the  special  appointment 


r  'if      -1 


H'J' 


m 


10 


PREFACE. 


of  one  of  the  King's  learned  counsel,  to  attend  to  the 
law  alVairs  of  this  Colonial  Department. 

The  first  connsel,  Avho  was  thus  assiirned  to  thr 
Boai'd  of  Trade,  in  A[)ril  17  IS,  was  Uiilianl  West, 
who  had  distinmiished  hiinsell".  hv  juiliiishinu'  ■  \\\  In- 
qnir\  into  the  Tnainier  of  ereatinii'  IVer-^  :  "  and  repre- 
sented, in  l*arlianient.  siiecessivtd\ ,  (Ir.iuipiuind  and 
liodniin.  He  was  allowed  a  special  s;d;n\  of  tinee 
hiuidred  pounds  a  \eai-.  Tiie  Advocate,  tlic  Attorney 
and  Solicitor-General,  continued  to  he  considlcd  >in 
[)articular  occasions,  and  were  ]iaid  tiie  accustm  nl  fee.-; 
for  such  ap[)lications.  In  June  i7-!>  .Mr  Wi-i  was 
appointed  ('hanceijor  of  Ireland:  liut  he  mdiappily 
^•'•i\  at  Dulihn.  in  Deceiulier  17-ii;  lea\iuL^a  sou,  who 
distinirnished  himself  as  tlie  correspondent  and  friend 
of  r.ray    the   poet. 

Kr.incis  Fa?ie.  of  flif  Inner  Teiupie.  a  rdatioj  of 
t!i',  Karl  of  W  c-;tmor!aii(l.  the  President  of  iln'  Uo:iii| 
of  Tiadi'  w;is  iinme(li;itel\  appoiiitrd.  a^  the  ucce^^or 
of  Mr  \\'est  in  .lull"  I7"J"'  lie  i  mdi  miicd  lonprc-enl 
in  Parliaiii'  lit,  either  Taunton  i>y  l'clci-.(i,.ld  ;  und  to 
a(  t  as  h-anieil  eouri-ei  to  this  e-tahli>liiii(iil  which 
rcipiireii  ()  much  leyal  assi-taiKr.  till  Novriuln.  1740, 
when    he    wa:<   appointcil   m    mcnihi-r  of    the    rmMid. 

.M'tcr  tlii>  loiiir  s''i\  ice.  ||(>  was  iiumcdiateh-  --iic- 
cecdcd  I)v  Matthew  Laiiih  the  lepre-eniai  iv  e  mi  Par- 
liament for  Stockhrid;.'*'.  lie  w  as  created  a  Uaronet  in 
.Fanuar\  ITi),  and  he  continued  a  rcprc-enlat  iv  c  in 
Parliament  for  Pet4T!M)rough,  as  well    a-    the     le.iiiicd 


PREFACE. 


11 


cuunsil  tn  tlie  lioard  of  Trade,  till  liis  decease,  on  tl 


10 


Titii  oT   .\()\-('iiil)er,     iTticS :    1 


lis  son,    Sir    Penist 


on,    was 


ercatt'd  a   peer  of    Ireland,    on    the  2d  of  May.    1770. 


ll    IS   uniie('essar\-   to  t"ll   wlio  were  the  li 


iw  otlicers  of 


the  Crouii    that 


ave   special    opinions  to  the    Board 


AS 


hill'   .Mr.    Kane  and   Sir   Matthew  T.anih  acted  as  l 


\vf 


cotnisrllois   to  tiiai    estal.lishiiient  :     lii 


iloni    -cell  >iicli  a  sue 


cession    <>t 


world   has  sel- 
Jm-ists,  whether  "i-  re- 
paid \\\r\v  know  led  (-e.  their  temper  or  their  intej;iitv. 

At   a    >('i;.    ciilicaj    iiioiiieiit   of  colonial    aflairs,    this 
important    ofhce  of  hiw  ad\  iser   to   tiie    j;  ,;ird  of  Trade 


remained   undisposed   of    (hn'in^-  sescral 


year     of  i;reat 


colonial    pcitniliation 
iTTt'.  Kichard  .lacks 


at    len'ith,  on  tli 


e  ;;i»th  of  April, 


Ol 


I.  one  of  tile  Kintr  s  i 


earner    nunstd 


w 


i«s  appointed    lo   this   trnsf.    whi.di   tii 


is    accoinpiisheil 


1: 


\\\fr    \er\     M 


'lli'ienlly    diMd.ar-ed   till   the   al.olili 


'I"    ;he    l^i.ard.   ,it    tl 


le    '•anie    epo(di    W 


revolted    Culunio   aekiiowledired   to 
lU     tl 


on 

liK  h    s.iw    thirteen 
e  sovereiun  States. 


le   -anie    st.itesi 


nan,    who    ad\  i.- 


'd-nient.    .Ml-    .l;,,ks 

'I      I  lie     'i"le,isin\  .       t 


that 


ackiiowl- 


"11    was  ap|iointed  a  Commissioner 


loiiLili     lii>    <nnni-,-if'nrfi    coiild     nut 


pi>'V<'nt     the    fdl    (,f    ll 


le     minister,     who   inuitili<-d    ih 


natiuii 


111-    prejiidiceH.    nnd    injured    it    l,\    his   i 


iro- 


.|«'<'l-<.  .Ml      .l.iek-ni,     .l,,.,!     nil      tile    till, 

l<'avin;r  il    very    ample    tortmie    t..   Jiis    , 


M; 


wo  si^f(«rH.      At 


the      till 


III-     i|e.c;|s,. 


le.iilled    iMiiil-el    a     liielnlier    of    l';,|- 


le     W,i>     one    of    the     Kinjr'; 


ini.-iit    and  a  fid! 


"W 


ol    Ih. 


ioi\  a  I    J  111 


Aiithpiary  SiKMetic'. 


vHl 


i  -W 


M 

■i.! 
.-   'Ill 


i 


'    ■•! 

^1 

.J 

i 

i. 


12  PREFACE. 

The  first  shock  which  the  Board  of  Tnule  had  to 
sustain,  was  givoii  by  the  inconsiderate  hand  of  the 
Earl  of  SlioUnu-ne,  when  he  was  appointed  Secretary 
of  State,  on  the  2od  of  May,  17GG.  The  correspond- 
ence and  the  patronage  which  the  Board  had  long 
enjoyed,  was  now  resumed,  and  they  were  intbrmed, 
Ironi  authority,  tliat  tiic  Connnissioners  were,  in  fu- 
ture, to  act  as  a  h.  ard  of  advice  and  counsel  upon 
such  i)oiiits  oidy  as  should  be  referred  from  the  Privy 
Council  or  Sccretaiy  of  State.'*  The  authorit\  of 
Parliament  had  been  recently  shaken  by  the  repeal 
of  the  Stamp  Act,  and  the  (Commission  for  plantation 
affairs,  w  hicb  had  iiuowledge  and  experience  and  en- 
ergy, was  thus  reduced  to  a   l)oard  of  reference. 

\\  hen  the  repeal  before  mentioned  did  not  procure 
ac(piie>cence,  and  the  siiiM-k  which  had  been  given 
to  tlie  Boar<l  (hd  not  enl'orce  respect,  vc  y  difterent 
miMsures  v  eie  adopted.  A  Secretary  of  State  for  the 
colonies  was  created,  and  in  duly,  ITtiS,  the  Board  was 
restorcil  to  the  authmity  and  pi-iictice  which  it  en- 
joyed and  used,  ■  anteceih-nt  to  the  date  of  the  said 
letu  r  of  the  ijdth  of  August,  iTbU,  I  The  Co- 
lonial Secntaiy  was,  tlieneeforth,  direct^'d  t(»  Im  a 
cai  til  III  meiuher  of  the  Board,  l)ut  the  past  oould 
not  be  recall*  '    while  Utile  souls  on  little  sliiftH  relied. 


*  liiinl  .sihclliiirrn''-  h  tt.T  »(  llic  '.'t'lih  of  .^u^u.st,  1700 

I  l.iTil  IMislnirnuirirs  .irticinl  coi.imunication,  dated  the  6th  of  J\ilr 


170" 


PREFACE. 


IS 


None  of  tlie  stati'smeii  of  that  period  nor  tlioso  of 


of  the  precedin-i;  or  subsequent   times,  had 


any  suspi- 


cion   that    there    lay    among    the    documents    in    the 


Board  of  Trad 


e  Mild  ))aper  office,  the  most  satisfact 


orv 


proofs,    from    the    e])och    of  the    revohit 


ion    in     16SS, 

throughout  every  reigii,  ami  (hiring  every  administra- 
tion, of  the    settled    i)urpost'  of    the    revolted  cohmies 
to  ac(iuire  direct  independfii.  ^.  :  those  shifts  of  policy 
only  strengthened    the    previous    design   which  had  so 
long  been  entertained,  of  accpiiring  positive  sovereign- 
ty ;    yet  wa^  m)t    .uch   a  design  believed  hy  little  souls, 
even  after  th.t    long  „u.,:i,.,ted  event   ha.l  .M'curred.  by 
the   positive    .leclanfion    of    it    iu    ITT*         The    subse- 
q.ienf    struL-h's    „f   inHHcieid   shift<,    ...t    xvhatever  ex- 
pense orm;,„v   milli„u>  au.l   mu.  I,   b|,     Ished,  only  led 
en  to  ti   ,t  ;,vowe,|  i.cknowh.,lgm,.ut  of  real  sovereign, 
ty,  whi.d,    u:,<    t,nlily    giveu    iu    I7SL'.       At  the  same 
epoch,   the   statesman   u  hn...  ebupa-nee  and   edorts   had 
so   em,.avinus|y   .•uutribut.Ml     to     ,|,a,     event,    Mn.ved    for 
the  law    whi,d,  ab„|,.hed   the    Hoard   of   T.;,de.*      Urd 
Shelbunie.  as  Se..retarv   of   State,   agan,    held    theomi- 
"<"'-    IH'U     uhieb,    on     ,h,.    LM     of    AuuT^t,     ITS"'    .-ven 

"-'"-   '-Hi.-v    the    Aet    had    pa.sed, unuueated    to 

tl..-    several     meinb-r.   of    ,he    (  ^n.mi^.H.u,    th.    deadlv 

*"''"-^'  "'•"    "'•■    '-"^    '-'    '-    lur.her    a.on    lor 

''"'"■• """'•"^''    "'-""".-iMl    services;    vet    a  pea  ..was 

still      fll      III.      |M!!i>      -v't.      -!  1  1 

'■'■"    ''""  '"*-•  L mi. -d  states,   with    Franco. 

•S'iG.o   III   ch.  f>'2. 


m 


14 


PREFACE. 


«. 


witli  Sjiain  and  witli  Holland.  Lord  Shelbnrne  lived 
to  hvav  in  Purliiunent.  that  the  peace  of  178:)  was  un- 
8atisl!ictoi-\-. 


Ae(|iiiesc('iiee    in    what    cannot  be    remedied,  is    one 


of 


h'  u'.cal   luonils    wliicli    nations  u\  then'    progress 


th 


have  to  praciicc.     After  all  those  events,  domestic  and 
foreign,  it   \v:m   sii|)posed   hy  some,  that  the  whole  busi- 


ness   of  the  late    Hoard    of  Trade  had  devolved 


ipon 


the  Secretary  of  State  ;  hut  the  Secretarv  for  the 
colonies  had  lieen  abolished  by  the  same  stroke  of  law 
that  had  dis.solved,  nntimely,  the  Board's  commission; 
and  the  devolution  exclusively  fell  upim  the  Privy 
("ouncil.  as  the  Kiuii's  Staudinp;  Council  from  ancient 
times;  it  acmrdinj^ly  acteil  for  scvera'  yeai-s,  in  sonu> 
ditlifult  ([Ucstions.  while  the  old  trade  and  new  habits 
v»f  the  I  iiitcd  States  were  to  be  re<raine(l  by  means  oj' 
a   coiiniittce  of  its  own    members. 

The  Secretary  of  Slate,  however,  whih'  some  dini- 
culties  still  remiined.  a])pointed  a  law  olhcer  to  en- 
lighten liis  stt|i>.  though  undtM'  the  late  act  of  Par- 
liament '  delilieiat  ion  and  ad\  ice  did  noi  belong  to  an 
ollii-e  which,  iiiiik'r  that  statute,  was  merely  ministe- 
rial fur  tran-iiii->iun,  rather  than  Ibr  counsel.  li.- 
recollertril  ]  mtIi.I  1 1>^.  thiit  tile  U'lard  o|'  Trade  (lid  en- 
joy the  in>trncf i\c  aid  of  a  ieanied  |ter^on.  but  he  thil 
nnl  kniiw  |iinl);ib|\  .  b\  what  authority  and  for  what 
iiiu'iiiise    sueh    ;\\f    '>l!ieer    had    lieeii    Miiiiiinit'.'d    li\     thv 


•22O00   III    Ch   r-2. 


'I  a 


Kin<r.       To    his    ow: 


PREFACE. 

counsel,  the    Colonial  Secret; 


15 


irv 


n 


low  r  fei-red    the    several    Acts    of  Assemlih 


as   tl 


lev 


arrived  from  the  colonies,  before  tli 


'v  were  i-eferred  to 


the  Privy    (.'ouncil,    for    exaininat 


ion  and  repo'-t  to  tl 


le 


>in<r 


it   is  easy   then,   to   sc    that    s.icl 


1  a   reference 


was  made    hy   incompetent  authority    to    an    incom 
tent  adviser.     The  reference,  therefore,  to  sucl 


pe- 


Ah 


ollor.  and   his  re[)ort  on  such  act.> 


A 


1  a  coun- 
ssenil»i\-  were. 


of 


course,  coi'dt))  unn  jiidi 


Ci' 


and   it  was  a 


measure  of 


retardation    rather    than  furtherance,  towards  ultimat< 
completion     l.y     the     King's    consent 
thus,   the  appointment  of  such  a   1, 


or    apj)roliatioii 


iw   oflicer.  the  adv 


lee 


su.li    an    oflicer,    and    tlie   f 


ees  of  such    an    oil 
when   deman   ed  of   private   parties  f.r  private  act- 


such 


icer 


a.s 


tl 


(lemaiKl  \n  recompense   |ur  incompetent   ad 


vice 


uis  connii  non    j,ufic<\   must   he  d 


eemcd   unollicial  and 


unconstitutional.     The  law,  as  we    learn   from    Sir   Kd- 


ward    Cok( 


icovvls    on    new    o(h( 


somethin;,^   is  demanded   lor  nothin; 
scowls  at   e\i'r\-  act   I 


cspecialh     wlun 


The   I'arl 


laUH'Mf 


>\   winch  monev 


iH'r  rai.«ed  on    the  .^-ul.ject,  witliout 
•  'itlier   \irtuallv 


IS,    in    an\     man- 


some  sort 


'I-    directU,   in    I' 


iil\ 


I- 


iii'liament    oi' 


as.'-ent, 


^em- 


very  ui.iu,   ever\ 


woman  ant 


>\vl    at    I 


''ver\    chini    must 


CCS    wlmdi    ari 


il<>maiidcd 


for 


ser\  ice, 


'""    '■"••   '"•"Iran.-.        Wl,..,,   Sir    I'lnlip    Vn.ke,    (he    At- 

'•""••■^  '••■•'"''''.   WMs   consclf..,!    ,|,.,„   „    ,„„i^^i„_,   ,,, 

I  !  .1 ..  1    ,111  ijii  I    ii  ii     ji  ica  1    iiiii"- 

l--,nt    XculiMiudland.   like  .   .,„,,    I.uvcrand 

'"""•    '"•    '•'■'••''    ""»,        l»c    hoped    no   cuHinns.i.,,    .v.=,..4 


111 


16  PREFACE. 

be  given  for  sucli  a  purpose,  Avithout  some  sort  of  as- 
sent by  those  who  were  to  \)ii\  the  tax." 

At  length  in  August.  178(1.  a  committee  of  Pri>y 
Counselkirs,  like  the  analogous  coniijiittee  of  ]074, 
was  appointed,  bv  the  derlaration  of  his  Majesty  in 
his  Council,  for  the  consideration  of  all  matters  re- 
lating to  trade  and  loreigii  ])lantations,  with  a  Chair- 
man, and  Vice-Chairman  and  suitable  oilicers.  When 
this  conmiittee  was  apjtointed.  the  act  of  the  22d  of 
the  same  King*  attached  upcm  it.  as  it  had  enacted, 
thnt  the  business  theretofore  done  by  the  Board  of 
Trade,  should  be  t'xecuted  by  a  connnittee  of  Pr'vy 
Council,  with  nil  tlu'  authorities,  ])owers  ajid  jurisdic- 
tions, given  and  enj<>ye<l  by  the  said  Commissioners 
for  trade  and   plnntjitiiais. 

The  authority.  ])o\ver  and  jurisdiction  thus  given 
by  Parliament,  precbided  all  other  power  in  tliis  re- 
spect, wlu'ther  claimed  by  the  Secretary  of  State  or 
by  others,  other  than  the  nieic  transmission  of  the 
colonial  acts  to  the  Privy  (^)uncii,  as  the  (-(institutional 
channel  through  wliieh  the  coiimial  acts  must  come 
before  such  a  cummiltee.  l\>y  the  Kim:'s  ultimate  de- 
cision. When  t  I'  Bdiird  <>f  'i'rade  was  abolished,  the 
Commissicmers  left  iirliind  tin  in  \.i-t  niannsi'ii|it  col- 
lections, which  are  (if  far  nmrf  v.din'  to  the  King  and 
nation,  than  all  the  moiicx  that  had  Immmi  paid  to 
them   in   the  nature  of  a  salary,  with  a  penurious  spirit 


•22  Geo.  III.  Oh.  82. 


PKElAcfc;. 


17 


and  a  tardy  hand ;  yet,  it  nni.st  bo  alio\vc',l.  that  the 
vahic  of  puch  collections  must  be  lira-'+.-d,  l)v  the  use 
which  is  made  of  them  for  the  jjublic  benefit. 

From   those  manuscript  collections  chieri\ ,  as  I  have 
already   intimated,   the  following  opinions  were    tran- 
scribed,   when    researches    were   made  for  minor    mat- 
ters ;    and    from   them  is  now  published,    Ji;r    the  first 
time,  the  opinion  of  the  Attorney    and  Solicitor-Gen- 
eral, Sir  Philip  Yorke  and  Sir  Clement  AVearg,  which 
was    mentioned   with    so    nmch    approl)ation    by  Lord 
Mansfield,  when  delivering  the  judgment  of  the  Court 
of     Kings    Bench,     in     the     case     of    Campbell    and 
Hall,  when  his    Lordship,    considered    this    opini,)ii    as 
authority    which  had    not   ))een  answered,   tliou-h   two 
such     great    names    had    coiisideiable     weight.       Such 
opinions,  when  given  to  the  King.  „i-  his  Councils,  by 
the  law  ofHcers  of   the  Crowu.  who  are  bound  b\    their 
duties,   to  give  their    .sentiments    niid   advice  aecordin..- 
to  their  skill  and  knowledge    n,ay   be  deemed  of  little 
less    authority    tlian  decided  hiw  :     and    the    foilnwiug 
opinions  are  published   with   the   well   uuv.uiug  hope  o^f' 
contributing  somewhat   to   the   useful   stn.k   of  juri.liral 
knowledge  which   the   profe  sion  and   tbe   pc.ple  eujov, 
as   the  .safest   shield   of    private   rigiits  ;  as   tbi'   noblest 
I'.dladium    of    the   public   good    i,,    sueli    an   euipire  as 
ours;   wiio.se  interest,  and   who.se  priih'  it    is,   (,,  !„■   .rov- 
criied   bv   law. 


tX      !  '  1 


pfTT- 


I 


Ji 


KETCHES 


OF     THE 


EMIIEJVT    LAWYERS, 


WHOSE  OPINIONS  AUE  GIVEN  CO  THK  PUBLIC 


IN  THIS  WORK. 


3.  />/:    Krfo/i,  of  tl 


K'fU.  "  Maritime  Dio(X'ol()<rie.  or  Soji  Ji 


10  Commons.      Jle  published,   in 


la 


nd,''  I'olio 


irisdiction  of  Eiif- 


2.  />/..  IJoi/J.  of  tli(>  C 

'").   ^h'  Lioiid  Jrukiii.'^,   was  ! 


in 


1020 


and   1 


amidst  vicissitudes  and 


ommons  :   flourished  1G77. 

ganshire, 
•mmoiis,  rose 


><)rn  in   Glamor 


lavm^-  entered    Doctor's  C 


I'l 


Volutions,  tlirou^di  everv 


■<tep  of 


■s  profession,  to  flu.  to,,.    II,  was  n.ade  Secretary  of  Stat 


'oiinsellor.      H 


e  resiiriied  hi.s 


IP  April  KISU,  and  a  IVivv  ( 

<%"i(iod  oflic,.  in  April,  KISI;  and  died  Z \^Z^ 

.!-.»  uscluiness  an-!   honor.       He  represented  Oxford 

•  M.vcrsitv  in  several  I'arliamenfs.       Mis  letters  and  ar- 

j;MmeMts  wen.  puhlishcdhvUvnue,  1721,  in  1' vols  folio 

1.    ■^-■•^''/-  A'-/,  was  elected  Treasnrerof  the  Inner 

''■"ip'''-  ""  111''  -i";;!  of (),tnl„.r.  I<;7:,. 

7.''';'  '''''"'"'"   "■— ;/A"'  wa.  n.adc  Solicitor-Gen- 
<■.;.!  n.    n;72:     hecame  Kcadcr  of  the    Mi.ldle  Temple  in 

"'V''   •""""•^'^"•■"'•"'■'l"-:nnesuci.,vin   |.17.i. 
'>     Sn-    W  >lh, nil  Jains-,    wi,,,   »•„,    'i' 


fIS'      11 


i'l 


20  LEVINZ,    SAWYER,    FINCH,    HOLT, 

Inn  in  IHTl,  was  cnnstitutci  Solicitor-General   in  No- 
vember 1G7B:  and  Attorney-General  in  January  ir)T4-5. 

7.  Sir  Cre-nveV  Levinz.  who  was  Treasurer  of  Gray "h 
Inn  in  107'.>,  ,>iicree(le(l  Sir  W.  Jones  as  Attorney-Gen- 
eral iluriui:;  the  same  year.  Hia  "  Repoi  Is,"  w'-.l.-h  were 
praisiil  by  Lord  Manslield,  were  published  in  1702;  and 
these  weie  r-oon  followed  by  his  "Entries."  There  is  a 
gentleness  in  his  opinions,  as  Attoiney-Gei'.eral.  which 
(loos  him  high  honor,  during  .,.i  age  of  little  scrupulosity. 
Jle  was  ere  ted  Sergeant  on  the  29th  of  Novend)er.  1681 . 

8.  Sir  liohert  Sanujer  Avas  appointed  Attorney-Gen- 
eral on  tlie  14th  of  February  1080-1,  and  again,  on  the 
7th  of  February  1G84-5.     He  died  in  1092. 

0.  Ht)ua<jc  Finch  was  appointed  Solicitor  General  in 
January,  1078,  in  the  room  of  Winnington  ;  hi.  com- 
mi.ssion  was  renc  ,ed  '\\\  February  1684  ;  Ixit  lie  secm.s 
to  have  boon  superseded  by  Sir  Thomas  Powis,  in  April 
lOSO.  Heneage  Finch  represented  Oxford  University  in 
Parliament  during  1078,  in  1088,  and  as  low  down  as 
170(1. 

li).  In  1088-9  the  whole  Judges  of  England. 

11.  S)r  Joliii  Holt  wa.s  l«jni  at  Thame,  in  Oxford- 
shire, 1043  ;  and  was  educated  at  Abington  school, 
where  bis  father  was  Ilecor<ler  ;  he  prcweedei'.  to  Oriel 
College,  Oxford,  became  a  member  of  Gray's  Inn,  isi 
10 ")8,  and  was  chosen  Rtvorder  d  Ltmdjn  on  the  13th 
of  Felnuarv  1085-0.  He  was  ap})ointc.l  the  King's 
Si'igeant  on  the  22d  of  April  1080  ;  on  the  17th  of 
Ai)ril  108!>,  lie  was  ai)pointed  t(j  the  high  ollice  of  Chief 
Justice  of  file  King's  Bench;  and  in  March  1709,  he 
fip.i-'ird  !n-  ;i<e!'i!!  career,  without  leaving  any  issue  to 
perpetuiite  liis  name.  iiis  letter  to  the  Lord-Pri'sident, 
the  E»u-1  of  Dauby,  advising  the  f<t'izure  of  the  charter 


TREBY,    SOMERS,  WARD. 


21 


of  Marvlaiid,  -\vitliout  office  found,  on  the  ground  of  ne- 
cessity, deducts  something  from  his  character  of  inflexi- 
bilitv.  as  a  Judire. 

12.  A'/V  ^rVo;y/e  7><'/>?/ was  appointed  the  Recorder  of 
London,  in  1080  ;  Solicitor-General,  the  4th  of  March 
"088- 'J;  Attorney -General,  on  the  7th  of  May.  1G89  ; 
Ohief-Justico  of  thj  Connaon  Pleas,  on  the  30th  of  April 
ir»92;  and  dyinj,^  in  1701,  was  succjeded  by  Sir  Thoma,^ 
Tivvor  on  the  0th  of  July  1701. 

13.  S/r  Jnlnt  Vomers  was  born  at  Worcester  in  1052;. 
was  educated  at  Trinity  College,  Oxford,  whence  he  re- 
moved t.-  the  Middle  Temple;  he  succeeded   Treby  as 
Solicitor-General  on  the  7th  of  May  1089,  and  as  Attor- 
ney-General on   the  '2J  of  May  L,l)2  ;    in  1093  he  was 
appf)iiited  Ltrd-Keeper  of  the  Great  Seal;  and  in  1097. 
was  cieated  Lord    Chancellor,   with  the    title    of  Lord 
Sonicr^'.       r,ut  (m  the  21st  of  May  1700,  he  was   .super- 
seded,  Athen   Sir  Nathan  Wright  was   appointed  Lord- 
Keeper.    Lord  Somers  was,  in  1708,  ai)pointed  President 
nf  the  Council,  which  office  he   resigned   in  1710.       He. 
died    III    1710.  after  surviving  the  pow-.      •>f  his  mind. 
He  appears  to  jiavi-  bocn  a  collector  of  t,.._is   during  an 
age  when   such  lore  abounded        His  judgment  <m    the 
banker's  case  was  puiilished,  some  year,-   after   his   de- 
cease.     Hi^  patnplilet,  a})pealing  to  the  judgment  of  na- 
tions,  .onceniiiig    the   rights  of  kings   and   the    privi-, 
leges  of   the  people,    has    run  through    manv  editions, 
as  we   might  ej.sily  expeet    from   the  title  and    the  sub- 
ject. 

14.  Sir  FJwaiul  WanJ.  the  Kings  Sergeant,  was  ap- 
i>"n!!ed  Atton.ey-Gene.r'  assu.ressor  to  Somers.  on  the 
4th  ..f  .Vpril  1(;!)3.  He  .vas  made  Chief  Baron  ..f  the 
Lxchequer,   on   the   K^th   of  June  IGOo.   and    he   ,bo^ 


:i|i 


^U4 


T 


22 


TREVOR,   nAWI.ES,  COMPTON. 


probably,   in  November  1714,  wlien   Sir  Sumr.ol   Dodd 
succeeded  him. 

10.  Sir  llioma.^  Tirrnv  was  appointed  Soliritdr-Con- 
eral  on  the  2d  of  May  1G92  ;  and  Attorney-General  on 
the  10th  of  June  169o.  He  was  made  Chid-Justiee  of 
the  Comnum  Plea.s  (m  the  .3th  of  Ji dy  ITIM;  lie  soon 
after  acquired  the  peerage  ;  and  died,  probaMy.  in  (>cto- 
ber  171-1,  when  he  was  succeeded  by  Sir  Peter  Kiiig,  as 
Chief-Justice  of  the  ComuKm  Pleas. 

16.  *S'//-  John  Hairle-^  was  appointed  Solieitor-OeniTal 
on  the  13th  of  July,  1095  ;  and  proi)ably  die;l  in  1702, 
as  Sir  Simon  Harc()urt  succeeded  him  in  tjiat  oiliee, 
(m  the  1st  of  June,  1702.  In  KiSO.  S'r  Joini  Ilawles 
publi.xhed  his  popular  tracts  on  Enuiishmens  ri-hts. 
During  the  same  age  of  agit.itions.  he  published  his  re- 
marks on  some  State  trials.  He  also  published,  in  KIS!), 
a  reply  to  Sir  Hartliolemew  Shower,  in  bis  eon.troveivy 
with  Sir  Kobert  Atkins  on  Lord  llu^seirs  innocence. 
"^'.le  Stat.  i)ai)ers  whieli  hav  since  been  ]iubli-licd. 
have  decided  the  points  that  were  thru  in  controversv. 

17.  ILitr;/  Coiiiptoii.  the  son  ot'  tiic  first  Karl  of 
Northampton,  was  born  in  10:12,  and  rdiica  d  at  Qiuvirs 
College.  Oxford.  Mv  was  created  i;i>bo|)  of  ( )xf,,rd, 
1G71;  and  in  the  sulxiMpien*  year,  w-^  tiansjutru  to 
London.  lie  had  the  honor  to  clucatr  ihc  two  prin- 
ces.st'.s,  Mary  and  Anne.  II,.  lirmly  ,,|,],o-,.,|  the  ilb-gal 
innovations  of  .Janirs  II.  I,y  <1.. lying  tbr  |u.i>."ciilion-r„f 
power.  .\t  til,,  i-ve  of  tiie  ivv,>bit.o,,.  ;,  r^uA^u■\■^  (be 
Prmce.ss  Ar.ne  to  Nottiiigliam,  lo  picveiit  ber  being  con- 
veyed to  France.  He  bad  tli..  a<ldition;d  honor  oi'  in- 
augurating  King  William,  after  delending  the  Kinii'-s 
tjUe  among   the  peers.       He  died  in  171:;.  at  the  a-e  ..f 


23 


tOUKE,   HKDGKS,  NORTHEV,   HARCOURT,   ETC. 

81.  with  the  character  of  an  eminent  divine  and  patriot 
ftaiosiuan. 

IS.    AW  John  Cuokt,  an  eminent  civilian,  who  was 
Kin^'.s  Advocate,  17"2. 

i^-'l±  Sir  Churh-s  lUiies,  Sir  Nathaniel  Lloqd; 
Htnrii  Norton,  llobwt  Wood,  Humphrey  Hendnmn^ 
were  all  Doctors  of  the  Civil  Law  ard  eminent  civilians 
at  tliu  acce-ion  of  Queen  Anne.  S;r  Charles  Hedges 
was  the  kmo's  Advocate  and  Secreta  v  of  State  ;  Sir 
N:ithaniel  Lloyd  was  King's  A.dvocate  ;  Henry  Newton 
.seems  to  have  been  a  Master  in  Chancery,  in  October 
1G91,  and  afterw^ards  King's  Advocate. 

23.  Sir  Edward  Northey  was  appointed  the    Attor- 
ney-General, on  the   loth  of  July  1701;    was  removed 
cm  the  -loth  of  April,   1707  ;    was  reappointed,  on  the 
I'Jthof  Oct..be.l710;    and    was    superseded  by   Lecln 
luere,   cm    the    14th    of    March,    1717.       In    the  subse- 
•luent  3-car,   a   pension  of  one   tliousand    five    hundred 
pounds  a  year  was  settled  upon  the  late  Attorney-Gene- 
ral, Nor^hey.      He  died  near  Epsom,  among  his  rela- 
tions, on  the  IGth  of  August  1723 ;  and  was  buried   by 
Ins  own  request,  in  Epsom  chureh-yard,  where  there  is 
a  monument  to  his  memory  ;  his  daughter  marrie-I  Lord 
llaymond. 

21.  Sir  Simon  Harcourt  was  appointed  Solicitoi -Gen- 
eral, on  the  1st  of  June  1702,  and  Attorney-General  on 
the  2oth  of  April  1707;  he  was  superseded  in  October 
1,08,  and  was  reappointed  on  the  18th  of  Septeml)or 
n  10,  He  was,  on  the  Dth  of  October  1710,  appointee^ 
Keeper  of  the  Great  Seal,  and  in  April  1712,  Lord 
Chnucllor,  and  during  the  same  year  was  created  a  p^cr 
He  died  on  the  28th  of  July  1727. 

25.  Sir  Thonuis  Parker  rose  speedih'  from  being  nn 
Aitorney  at  Derby,  by  great  talent  and  eloquence,  to 


T 


24  KING,    MONTAGV,  EYRE. 

the  height  of  his  prole-s^iion.  He  was  created  Sergeant 
in  1705,  when  he  was  also  chosen  into  Parliament. 
Having  distinguished  hiniselt'  here,  he  heciiiiie  distin- 
guished everywhere  else.  He  was  appointed  to  >u('ceed 
Sir  John  Holt,  as  Chief-Justice  of  England,  on  the  Kith 
of  March  171(».  He  became  Chancellor  on  the  VJth  of 
May  1718;  and  was  created  Earl  of  Macclesfield,  on  the 
5th  of  Novend)er  1721.  His  fall  was  as  liipid  iis  his 
ri.-^e.  He  was  accused,  in  Parliament,  of  some  coi'nip- 
tion  in  the  sale  of  oHices  in  Chancery  ;  he  resigned  his 
hiirh  stati«mon  the  l!4th  of  Janunrv  17-1  ;  he  was  found 
guilty  by  his  peers,  and  was  lined  thirty  thousand 
pounds.      He  died  on  the  2Sth  of  April   \~'.V2. 

20.  S/r  /\t(r  Khuj.  from  vt'ry  dilVerent  studies,  he- 
came  a  student  of  iIk-  Middle  Teui])le.  He  \vii<  chosen 
Recorder  of  Eoudon  in  I7"S,  and  was  apjxHnted  Chief- 
Ji'stice  of  the  Cnminou  I'li-as.  on  tin-  "-^''tli  of  Octuhcr 
1714.       He    was  made  f.nni-Krcp.T  (Hi  the   1-t    of    Jui 


le 


172 


ill 


am 


an( 


1  15; 


iron  oi 


resiiiu  this  lii; 


1  on  the  27th  of  June    1727.   l-i'i-d   CliaiKellor 
Ockliam       His  iidirniities  indui'ed  liim  to 
■li  ofTicf.  and   he  dieil  on  the   22il  of   Juh- 


17;'.4, 


aire( 


1  g: 


^//•    fhtniis 


Mniiti 


iilti    was    appointed    Sdlicitoi'- 


(ieueral    in    April    1707,    Attorncvdeiieral    in    Octoln-r 
17<IS,    (Queen's    Sergfant    in   OrtMlicr    171 
same  tiiMf.  Maron  of    thr  K\i!ieipi»T        In 


.'Mill 


at     the 


flDpointi'd  one  <i 


f    tl.c  ( ■()innris>ioncr-  I'M-  tl 


xcrliMlL;  i>t 


lie    was    ap- 


tlie  (ircat  Seal  ;    on  the    llli  of   Mav     17: 

|Miint«'d  ( 'luff  l>aron  ,  mikI  hi-  dud  on  the  2<ith  <if  ( >it(il>cr 

1723. 

2S  Si,  lii-l'tit  K'ii-  wa.s  iippi>inted  Solicitor-licneral 
inOfUtlxT  17ll'"^  ,  \Vii>  madt  one  of  the  Justn  cs  mI  the 
King's  lieneh,  m  May  171''.       He  waw  raiKt'd  to  l>e  Lord 


STHAHAN,   RAYMOND.   ALAM 


25 


Chief-Justice  of  the  Cnnmion  PI 
uarv  17-5(i. 


eas,  and  he  died  in  Jan- 


2!).    Docior  William  Stvahan  of  the  C 


R 


i\m 


oinmons.      He 

omat's  Civil   L,iw. 

was  republished  in  1737. 

was  the  Son  of  Sir  Thomas 

lond,  one  of  the  .Tnstiees  of  tlie  Kiuir's  Bench,  who 


published   in  1722.  a  translation  of  D 
in  tv.'o  vojiinies  folio,  which 
'50.    <SVr  RoJ,(-rt  H<i>im(tii<l 


died  in  lfiS:{.     Sir  Robert 


was  appointed  Solicitor-frcne- 


ral  in  Ma.v  17 10.  and  Attorney -(ieneral  in  OclobcM-  I7U. 
he  was  made  .  mc  of  th.>  Justices  of  tlie  K 


January 


Kn-rland.    on  (he  2Sth  of    Fel 


iuii's  Bench  in 


of  Macclesfield 


172:-),  and    was  advanced  to  be   Chief-Justice  of 

ruarv   172!      On  (he  Karl 

le   was  appointed,  with  Sir 


s  recession.   1 


Joseph  Jekvl  and   Sir  Cieoffrey  Gilbert,  a  ( 
of   (lie  (ireat  Seal,  on    (he    7tli  of   J, 
Holicrt  Hayiiiond  was  created  a 


a  I    unnnssioner 


iiniarv 


1721. 


iia 


ly    17:50-1.      IK- ,ii(>d 


peer  on  the  2lst  of  J 


oir 
an- 


'"    ih.'    Illtli    of  M.u-cli     n.i;}. 


By    Xortheys   .laufrhter,    he    left    a    son,  wli..    d 


\  II 


•>:>.  th 


Kt 


e   |)eeraire    became    evtiiiet.        i. 


IK    m 


port 


s    and 


Kii( 


OIK    l>a\riionds 


death,  and  have  been  of( 


ries     \v(>re    publishe(|    X^nv^    afier    I 


\\9, 


tor: 


•  Ml    repiiblisher 


"\      eveial    edi- 


■SVr  JitJni  /■'•nit 


.\h,i„l 


in  .March   |(,7((,  d. 


ii>^   born   ill    Loud 


on, 


oaii'ditcr  o 


A  I 


f< 


e  son  of  KdiiK.nd   Korte^ciie  ;iih|   >arah 
'"•1  .'f  WaterfonI        IlcchuM.  the  law 


"•  I'l^  prole..„„i,  and  was  called  to  || 


I  Her  Temple    Socict\ 


II 


le  bar  b\     the    |, 


<•  wa-^   appoiiileil  (lie  SoIici(,„-- 


"•"•••■^'1  '"  ITI-.;  and  beuasmadea  Banai  ..f  the  Kx- 
'■'"■'l'"-'-  '"  •''"Hiary  171.1  |„  Ma^  17  Is  l,c  w  ,.  ap- 
'"•■>"'■''  ""eof  the  Justices  of  the  Kne^.  Mend,  and 
'H  January   172S    he  was  removed  t,.  , be  ( 'our,  of  (,.„,. 

' '*'''"^       "••••••'• "'i-MedM,  theperlonnanc,    nf„ 

v.-ry  nuportunt  (rust,  (dl  tiu.   2.;,h   of  .hu..   17  |,;    .vh... 


r:{r 


ill 

ril 


m 


.n»^ 


irt 


iiti 


i 


as 


THOMSON,    WEST,    FANE,  GIURON. 


(1 


he  was  created  an  Irish  peer,  by  the  title  of  Lord  For- 
tescue  of  Credan,  in  tlio  county  of  Waterford.      He  did 
not  long  survive  this  splendid   reward  of  his  services  to 
the  State ;    dying  at  seventy-six,  on  the  19th  of  Decem- 
ber 1740  ;    and  k-avin;r  his  second   and  only  surviviTig 
son,  Donner,  who  died  in    17S1,  withont  issue,  wherehv 
the  titk'  became  extinct.      Sir  John  i)atronized  Klstoli 
the  Saxon  scholar,  whom  lie  encouraged  tc  publish,  witii 
corrections  and  eidargements,  the  Saxons  Law.s  appears 
to  have   republished    in    I7U,  and    in    1719,    the    Lord 
Chancellor  Forte.^cue's  work  on   tiie  difl'erence   between 
an  absolute  an<l  a  limited,  irionnrchy,  with  a  learned  pre- 
face, concerning  the  l^iiws  of  Fjiglnnd.  remarks  and  an 
index  by  Sir  Johii  himself 

32.  Sir  ]\  illi(uii  'I'hont-snii  succeeded  Sir  P(>ter  King 
aa  Recorder  of  London  in  1714;  was  ap]»ointe<i  Solicitor- 
General  ou  the  8th  of  February  17  Ki,  aiid  was  super- 
seded on  the  17th  of  March  171'.).  He  was  appointed  a 
Baron  of  the  E.\che.pier.(m  the '.'7th  of  N,,v,.,nl»er  172!:; 
and  he  died  in  Novend»er  U.)!*. 

3;{.  Richard  West  was  appointed  counsel  to  the  Board 
of  Trade  in  171S,  and  died  Chancellor  of  Iielaiid  in 
172(i. 

34.  Francis  Fane  succeeile<l  Mr.  West  as  Comisel  to 
the  Board  of  Trade  in  172-').  and  re.>-igue<l  this  tru.-t  in 
1740. 

3o.  PMiuond  (iib.xon  was  born  in  Wotmorekind,  10!I!). 
He  entered  Queen's  ( 'ollege,  ()\on,  as  a  servitor  H(. 
seems  to  hav«'  enriv  apjilied  mu(  b  of  hi-^  genius  and  at- 
t<'ntion  to  old  Kiiglisb  literature  He  pidilished  at  Ox- 
ford in  lO'.tl,  the  l\J,  ,„,,  ,l//././//*/,M)f  Druminoiid.  a  maca- 
ronic poem,  and  .l.iuies  V  Kiui^-of  Scot  s  ( "hi  isi-^  Kirk 
ou  the  (ireen,  with  illustrative  notes.      Ho  publu-hed,  at. 


MORRIS,  HAMILTON,  BI.ENMAN,  liAWLINS,  ETC.  27 

that  seat  of  learniiif?,  what  was  doubtlesH  of  more  im- 
poitniioo.   in    1G92,  tlie  Saxon  Chronicle,  with  a  Latin 
translation,  an  index  and  nofes.      lie  was  bwu  after  ap- 
jminted  Chaplain    to  Teiinison.  the  Bishop   of  London 
lie  took  his  Master  of  Arts  defiiee  in  1694  ;  and  in  the 
siil.seqiient  year,  he  gave  .a  edition  of  ^linden's  Bi"tan- 
iiia    which  his  gratitnde  dedicated  to   Bishop   Tennison. 
Prelerinents  now  flowed  uixui  him  in  rapid  eonrse,  and 
his   ('(ylr.r  .Jui'i-y  (cchsiti.^firi  Aihjlintin    he  gjive   to  the 
learned  world  in  171:).      lie  soon  I.  ul  his  reward;  when 
VVake    was  advanced  to  the  primacy,  from   Lincoln,  in 
171"),   (Jihson   W!i^  pnmioted  to  the  See  which    the   Pri- 
mate  l«ul  left  ;    and  in  172:5,  lie  was  translat<.'d  to    Lon- 
don, where  he  acquired  the  jurisdiction  of  the  colonies, 
and  incidentalh.  a  seat  at  the  Board  of  Trade  and  Plan- 
tations.    He  ,lied  at  Bath  in  174S,  leaving,  with  several 
(•Inhlren.  a  great    character   for   learning,  and  still   more 
lor  attachment   to  the  Church,  whose    interests   he  had 
promoted. 

.'!(i.    '['h(.  Chii'l-Justice.  A,/r/.v  JA>/r/.v.  of  New  York. 
o7.    Mr.    W'illnun  /A/w/Z/o//.  of  Pi,ila,lelphiii. 
.'5S.    The  Attorney-Cieneral  AV, /,///„//,  o!' Barbadoes. 
••!'•     The  .Vttorney-Cleneral  /.Vz/rZ/y/.v,  „f  Barhadoes 
4l».    The    Clncf-.Fusti.v  h\  //.  JA.yr/.v,  „f  X,.w  Jersey. 

41.  The  ,\ttorney-(]eM,.raW7,/^o//,  of  Barl,a(hH>.s. 

42.  Sir  Chm.Nf    W,.,,:,  u;..  appointed  Soiiritor-(ien- 
'••■''  ""  ^'"'  •"'  -''  I'.'I'nury  1 72.1,  and  .lied  in  April  172(i 

^^"•'^  •^^^"'"''^' "•'dinned  hii.i,  in  the  ca.M.  of  CanmheU 

"lid  Hall,  as  11  Iiiuvrr  ofg-ca'  i   ,iiie. 

l;>     .Vr   I'lnhp    y,,d,    uMs  hnni   at    Dover    in     lOVO 
Si.rh  Nvas  his  grnius  and  diligence.  tli..t  li.- .jui.klv    rose 

' ■••'^''•-'»lr.^'">-"..d  a    great  nun.  dnnugan'age  of 

Warned   lawyers  -,..1  considerable  men.       He  sncceed-^l 


28  TALBOT.  REEVE,  LUTWVCHE,  WILLES. 

Sir   William    Thomson   as  Solicitor-General    in    March 
1719  ;  he  was  appointed  Attorney-General   in   Jannary 
lr2?>,  and  Chiei-Justice  of  Enjjland  in  October   1733, 
when  two  thousand  pounds  a  year  was  added  to  the  sal- 
ary of  that  office,  which  requires  independence  and  sufli- 
ciency.       The  (Jreat  8eal  was  delivered  to  him  on    the 
14th   of   February    1737.   whirl,    he   held  for    nineteen 
years  with  universal  applause.    He  resi^med  it  in  Novem- 
■   »»er    i7:'(i.   amidst    the  convulsions    and  --grets   of  his 
country. 

14.  r//.///..v  Ta//>af.  the  son  of  William,  Bishop  of 
Durham,  who  died  in  1730.  w:,s  appointed  Solicitor- 
(ieu.'ral  on  the  death  ,.C  Sir  Clean  nt  Wearg.  in  April 
1720;  aiul  was  constituted  Lord  Chancellor,  and  cre- 
ated Lnrd  Talbot  in  J733.  He  died  in  1737,  at  the 
premature  age  of  (ilty-one,  having  previously  lost  hi.s 
•sou,  who  was  deplori-d  in  the  pathetic  strains  of  Tlxmi- 
son. 

1).  >//■  'I'lHnim.s  h',,r,  wiis  appoint, -d  a  Justice  of  the 
(  omu.ou  Pleas  in  February  1733,  and  in  Jamiary  173(1, 
Chiel-.Fusti.eul' the  same  ("ourt  ;  and  he  died  in  I737! 
leaving  lustriictiuus  tu  his  Nephew  for  the  Study  of  th" 
Law,  which  were  pul»iished  i,,  the  Co(l,r(a,ua  Jun,/ua, 
vol.  ii.  7'.' 

"<i.  'ihi>nt,(.s  Lni,r»frh<  who  was.  i)robal)ly.  the  s..m  of 
Sir  KMwanl  Lulvvyche.  died  on  the  iSth  of  November 
1731.  nue  nithe  Kin-s  Cumsel.  He  entered  the  Hou.se 
'JlCnmmons  ui  I7I(».  au.i  c.aitinued  to  sit  in  if  till  his 
decease,  u  Jieii  he  sat  fbr    \mersham. 

47.  Sir  Jnin,  MV/A.v.  whil,  ;,  .tudeiil  at  All-S,,ul,s 
Colleg...  <Kti,rd.  imbb.b.d  ,u  I  7  I  f.  a  pau.phlct  eulitU-d, 
"The  present  CunsiitutK.u  nod  fbe  IVotesfnnt  Su.re.s- 
■ion   vindie,,»4<.i.  •  i„  „nswrr   to   a    late    Uv.k,    the    well 


PAUL,   RYDER.   STRANGE,  MURRAY. 


29 


known  Jlereditarv  right  of  the  Crown  of  En<rland  asr 
sert^d.  In  17J8  he  was  .sent  to  Scotland  to  a.s.sLst  in 
carrying  on  the  prosecutions  for  high  treason,  which  im- 
policy had  instituted  and  the  firnuiess  of  the  Grand  Ju- 
ries di.sappointed.  by  throwing  out  the  hills.  He  was 
nuniinated  Attorney-General  in  December  173:^,  when 
Sir  Philip  Yorke  was  made  Chiei-Justice  of  England  ; 
and  he  was  .ippointed.  in  Jainiary  17M7.  the  Chief-Jus- 
tice of  the  CouuMon  Pleas.  Ik,  died  in  I7(il.  His  Re, 
ports  were  published  in  17!)'J  by  Dornford,  extending 
from  1737  to  1758. 

48,   Do,  for  PauU){   the  Commons,  the  King's  Advo- 
cate. 

H).  Sh-  D>i</h^,,  Puidrr  b(>came  Solicitor-General  in 
Oeceniber  17:5:5,  on  tiie  proMiofi.pti  of  Mr.  Talbot,  ;ind 
Attoniey-General  in  Jaiuiary  I7:i7.  and  CIik f-Justice  of 
Enghuid,  on  the  death  of  Sir  William  Lee,  in  April 
I7r)4.  He  died  on  the  L'oth  of  .\pril  I7"):l.  He  was  tu 
have  waited  upon  his  Majesty  the  .!,iy  before,  on  ac- 
count of  his  bring  crcat,.!  a  p,vr.  by'thc  title  of  Lord 
Ryder  of  Harrowby,  LincolnshJnv  but  bis  indisposition 
prevented  his  having  that  honor,  whi.-h  h..  ha. I  merited 
by  his  talents  and  ser.  ices. 

•'<».  Sir. I,, In,  Sfni,,./,  b,  ,une  S-.li.-itor-General  on  the 
"••"'""i""  "f  Sir  Dudley  Uxdrr  He  wa<  chosen  Ke- 
'^''  '■"''  '"""I""  in  .Novmbrr  I7:;'.t:  an<l  la-  was  ap- 
pnnued  .Master  of  tbr  Wolls  in  .I.,nnar\  I7.-,(I:  be  died 
"1  I7M  lie  IS  rcmenib.Mvd  li,,-  hi-  Kepmts,  \v|,i,.l,  were 
l)ublisli.d  by  his  sou  in   l7').">. 

''i  The  n.n>  WillnuN  .]/„rr.f;/  the  Inuitli  -  <u  ol 
Da\id.  VisroMMt  orSiormuMf  was  b,,rn  at  L.Tth  in  1705; 
and  w,is   educated   at    Westminster  School  and    Christ's 


m 


MURRAY. 


Church,  Oxford.*    Eekirniiin:  from  his  travels,  he  entered 
into  Lincohis  Imi  where  he  was  called  to  the  bar  in  1731. 
Here  his  abilities  soon  became  km;A'n,  both  as  a  lawyer 
and  an  orator,  and   he  immediately  came  into  full  l)usi- 
ness  of  the  hiohost  kind.       In  November  17  42,  he   was 
appointed  Snlicitor-(Jeneral,   on   the   resioniition   of  Sir 
John  Strange  ;    and  he  was.    immediately  after,  chosen 
into  Parlinmcut  for  I}orou,sihbrid^a\  and  i'or  it  served  till 
he  was  appt)intcd   Chief-Juslice.       This   is  an  important 
fact,  as   it  shows  tliat  he   obtained    his  first    prefernK>nt 
from  Westminster  Hall,  and  not  from  the  Senate  Hou.v^e; 
and   he   was  not  even  a  Kiniis  Counsel   till    November 
1742.       How  uiuch  he  Mas  C(msultc<l    liy    the    Pelhams, 
and    how    nmcli    his  advice   was  followed  by    them,   we 
may  learn  from  Doddingtons  Diary.     He  was,  of  course, 
apjiointed    <>iie  of   the   Mana<:ers  Ibr  the   C'onuiK.ns.  on 
Lord    Lovats  impeachment:    and  such  was  at    once  the 
moderation  of   his    inauner,   the  candor  of  his  spirit  and 
the  elficacy  of  his  elocpicuce.  that  he  was  thanked.  lujth 
by  the  culprit  and    tb<-   Court.       ile  was  long  Solicitor,, 
not  bciui;  ap|Hiiiited  .\ttorney-(ieiu-ral  till  April    17o4; 
this  furnishes  an  other  point  of   instruct i.on,  that  j)er.^e- 


•  He  was  adiniUiui  to  St.  P.-terV  Cllcpf,  Wo.stinin,.U.r  in  1710,  „t  (!„• 
a^.'  of  (biiit..,;.  :  aihl  in  i  7  .'.!,  was  elurtcj  to  Oxford.  It  in  curious  to 
remark,  tln.t  tin  <'"li.';:''  ii''>:i>trar,  li.ini.' prol)al.Iy,  .Moincwliat  d\ill  of 
hearing',  record,  .1  the  :i,liin>,Mciii  of  Mr.  Murray,  ajred  ei;rl,tc..M,  t,oni  ;,t 
.»«///,  in  th,.  couut\  ..|-  .^o.ncr.et.  .Sir  Widi-n  Hlack.^tone  din'inL'  with 
Lord  Man.slicld,  and  sa\in;rlliat  l,c  conl.l  prove  l.y  record  evidence,  that, 
hi.s  Lordship  was  .lot  a  Seotchm.ui  l.oni,  hut  .u,  Kii,Ldi>hn,an,  [  roduc.d  a 
copy  from  the  CoHeire  niatriculalion  l.o,,k,  which  mad,,  his  Lordship 
l«Uf,'h  x.Ty  nuK  h  ;  an,i  h,.  ,vphiiiie,i  the  mistake,  by  supp,..sin^'  that  tho 
porson  who  st  ,t,,l  his  p|.„.o  of  hirth.  to  have  pronounced  Perl/i  with. 
•4  oroad   ..'Cciit,  wLiv  1,  till-  Uc^i.^lr^r  nii.'to,,k  foi   iiatii. 


Mt  KRAY.  3* 

veraiice  in  an  inferior  station,  generally  leads  on  to  the 
hijilie.t;  ajid  it  evinces,  also,  his  unassuming  gentleness: 
^Vhen  Sir  Dudley  Ryder  sunk  under  his  infirmities,  the 
Attorncn-General    Murray   was  immediatelv   appointed 
'Jluel-Justi-e ;    he  was  cioated   Lord    Mansfield   on    the 
Sth  of  November    1750,  and  he  was,  of  course    called 
'Hto    the  Privy  Council.       Of  his  cmdnct,   during  two 
an.l  tlurty  yours  as  Chief-Justice,  the  Juridical    Reports 
i'le   the  Recoi-ds  and   the   Connnentaries.       Durin-  the 
I-l.tical  contests  of  the  year  1757,  he  acted  ofhciallv  as 
haucellor  of  the  Exchequer,,  in  the  room  of  Mr.  Le-'e 
In  I  -  /  1   he  went  to  Paris  on  a  private  emhassv,  and  on 
li-s  private  atlS.irs.  pr.ihahly;  Lord  Stormont,  his  nephew 
and  heir.  I.c,n-  then  Amhas.s-xdor  at    the   French  Court 
He  was  tinve   ti.ncs  ..lU-red  tiie  Great  Seal,  which  he  as 
'>'t^"'   'le<-l.u..d.       He  was   advancd    to  an  Earhhun.  i„ 
<''-t"l"-r  l,,i,:  and  f,y  a  new  gran;,  the  ren.ainder  after 
iadnre  of  his   own   issue  male,  was    li,„ite.l  to  hi.s   heir 
the  V.sc.unt  of  Stormont.     During  the  tumults  of  1780 
li-s  house  i„  nio„msbury  Square  was  burnt  bv  the  mob" 
Av.di  Ins  b,.oks  nnd   manu.soHpts.       With  his  u.sual    deli- 
'■"'•'•  ''*'  ''•"•'■'"■''  '••'  <-'>n.pcnsation.  a^  he  knew  that    he 
;""'•'  ""f  '•" '"'""IK'^.'^ated.    Den     dd  .he  popular  insult 
'•v   .-.n   .lugn.ente.l   assiduity    in    the  labors  of   his    hi..h 
Jn.st.  I,.,- the  popular  goo.l.       At   length,  his    inlirmitK.s 
""'•'••'•'""-"'•  ••^-i;^"  l.is   nni..e   inJanuarv   17SS   whe.i 
1-    was   i;.llowed  by  the  regrets   of    ,ho    profession    and 
thr  genuM.e  respect  of  an  eulighlened  publie        H,    died 
"'  *  ^>'"^^—'  -"    «l'e2()thof   Mareh    I7:»:l,    a^ed    en-hty- 
•■';;l.l.  h'avn.g  a  very  gr.a.   (or.uue    .1...   n^ee^sarv  efh^.f 
•"l-Hdentuianagemen.  throughout  so, nauv>  ears     Hi. 
»"H'   intellect   and  retentive   memory    remained   to   the 


32  MITRRAV,   HENLEY,   PRATT. 

last,  though  h'.  had  lived,  tor  several  years,  under  great 
debility  of  person.      In  April    1784,  he  lost  his  wife, 
Lady  Elizabeth  Fineli,  to  whom  he  was  married  in  1738 
yet  by  whom  he  had  no  issue.      On  the  morning  of  the 
28th  of  March,  he  was  ])uried  in  the  same  vault  with 
his  late  Countess,  in  Westminster  Abbey.      The  Judges 
of  the  several  Courts,  and  the  most  eminent  lawyers  in- 
tended to  have  followed  to  the  tomb  the  remains  of  this 
eminent  jurist  ;    I)ut   they  were  assured  by  Lord   8tor- 
mont,  Ihat  it  was  the  particular  request  of  the  late  Earl, 
that  his  funeral  should  be  as  private  as  possible.    A  mon- 
ument has  been  erected   to  his  memory,  by  the  singular 
aflection  of  a  private  ])cr.><on,  in  the  same  abbey  that  is 
crowded  with  monuments  to  the  celebrated  characters, 
tvhich  tliis  nation   lias   jiroduced   and  fostered    in  every 
nge. 

52.  *SV/'  Jio/jcrf  ILnh  11  succeeded  Lord  Mansfield  as 
Attornev-General  in  17")(;.  This  Avas  to  be  expected, 
from  the  notices  of  hini  in  Doddingtons  Diarv.  He 
was  apiH.intcd  ibc  Keeper  of  tiie  Seal,  on  the  oOth  of 
January  I^.")?.  and  lie  \\a>  creat'd  I.ord  Henley  in  1700; 
Jippciiiitcil  Lord  ('haii(c!l(ir  ill  .biiuiaiy  I7til  ;  and  created 
Karl  of  Xoitbin-ldii  in  May  ITHI  ;  and  was  made  Lord 
Pioidcnt  of  the  Coriicil  in  June  IT'Ki.  He  died  oii  the 
I4th  fd'Jaiiiiaiy   177  I. 

o;;.  CJidrh.^  I'r,ift.  flic  third  son  of  (h,.  ( 'bicf-.Tu.stict., 
was  ciiicat,.,!  at  i;((.n  and  Kiiiu's  ( '..Jlege.  Camliridge. 
Ur  \\A<.  thoii-li  ill  olis<nrit\  and  witlionf  am  previous 
"Hi.-.-  in  the  law,  .appointed  Attoniey-CJeiieral  when 
Henley  wa^  made  Lord  Keeper  in  dune  I7'.7  Fie  was 
made  ('liier-.lM-*ire  .,|tlie  ('oiiiiii..n  FMeas  in  I7(;l>.  and  if 
*sas    from   thi^  li,.i^r||t.   dining  a  season  of  perturbation, 


M 


TKATT.    VOKKK. 


33 


that  he  .jraiiied  his  populai-  honors.      Other  hiwyers  and 
other  .iiKl,irv?s  as  great  as  he.  have  coveted  tlie  popularity 
whicl)  follows  one,  rather  than  wliat  is  followed.    In  17(Jo 
he  was  raised  to  the  peerage,  and  in  17GG  was  appointed  to 
the  Seals,  which  he   lost  h\-  maintaining  doctrine-    that 
his  coadjutoi-s  -'id  not  approve.  He  sided  with  the  cohmial 
pretensions  and  opposed  the  governineid  dnring  the  war 
of  the  revolted  colonies;    conn'ng  in  collision  witli  Lord 
Mansfield,  while  maintaining  such   pretensions,  he  lost 
ground   as  an  oriitor  and   a  lawyei-,    whatevei-   he   may 
have   added  to  his   popularity.       In    1782,   he   was  ap- 
pointed Lord  President  (.f  the  (  onncil.  which  he  held  du- 
ring his  life,  if  we  except  a  short  recession  in  17S:].     (Ju 
the  18th  of  April  17!U.  he  died,  iiaving  been  create.l  in 
May,   17S(i.  Viscount  Hayiiam  and  K.irl  L'amden.     ik-  i.s 
ranked  among  tiie  royal  and  n(.l)lc  autiiors.  as  tliewriter 
of  a  tract  on  tlie  niiturc  and  etfect  of  tiic  llaLcas  Corpus 
Act.  the  great    Indwark  of    Knglish   ]ilicrt\-.  which  he  is 
said  to  Inu-c  puldisJK'd  in    17")8;   his  argument    in    the 
ca.se  of  Ilind.son   and   Keis,y  .   wherein  i.onl  Mansliold's 
argument  in    Windham  and   ('lictwyn.l.   was  c..nsid(ied 
and  answered,  was  given  to  the  puhiic  in   I7(;(;.* 

•)1.  Tiic  JIoH.  Clnirh.^'  York,,  tlie  second  son  of  (he 
great  Earl  (pf  Mardwicl<.  Wi.s  l.orn  in  I7L'2.  an.l  owed 
his  .scholastic  ednciition  lo  (',,  .;,iHidge.  as  he  owed  his 
law  learning  to  Lincoln  s  Inn,  uhich  lus  p,.Mhic»  .1  so 
many  pn.found  lawyers.     lie  w;i>  m  .•..adjutor  in  writ  In-' 

'  ri 

•Thi.s  argument  when  I,ubli^l^.a  i,,  I ,in„,   w.-,.  suLpr.-.o,!  !-  .  rler 

of  tho  Court  of  Con.n.on  I'l.as,  ov.r  wlnH,  l.„ni  Cannl.-n  tlu.,,  ^n- 
Hided  ;  but  It  w.ifl  soon  puhlinhod  in  „„  Syn.  pampM.-t.  a(  Dublin  'im 
Park's  odit.  Cat.  U,  .md  N.  authors,  vol.  4,  3G0. 

u 


I        ♦ 


m 


« 


*»  LLOYD,  HAY,  NORTON. 

the   celebrated  Athenian  Letter?",  a.id  amused    himself 

with  poetry.     In  1745  he  gave  to  the  learned  world  his 

Considerations  on  the  Law  of  Forfeitures,  which    went 

to  the  fourth  edition  in  1775,  at  the  eve  of  another  re- 

volt.      He   entered    Parliament   as   representative    for 

Ryegate,  in  1747,  at  the  age  of  25.     He  succeeded  Sir 

Richard  Lloyd  as  Solicitor-General  in  November  1756, 

and  followed  Lord  Camden  as  Attorney,  in   December 

1761  ;  l)ut  he  resigned  this  office  in  November  1763,  and 

was  again  appointed  in  August  1705.      He  was  chosen 

a  Fellow  of  the  Royal  Society,  a  Trustee  of  the  British 

Museum  and  Recorder  of  Dover.     At  length,  in  1770, 

he  was  appointed  Lord  Chancellor,  and  was  created  a 

peer  ;  but  dying  in  the  same  month,  before   his  patent 

had  passed  the  Great   Seal,  the  creation  did  not  take 

eflfect,  though  the  patent  had  passed  tiirough  every  other 

form. 

55.  Sir  RUhai-d  Lloyd  was  appointed  Solicitor-Gen- 
eral  in  April  1754,  upon  the  promoti(m  of  Lord  Mans- 
field. In  1750,  he  was  called  to  the  degree  of  Sergeant, 
on  his  Ixiing  made  Baron  of  the  Exchexiuor,  and  he  died 
in  1761. 

50.  JJr.  (reori/e  Haif.  the  Kings  Advocate. 

57.  Sir  Fletcher  Xnrfoii  was  born  on  tlie  23d  of  June 
1710,  and  in  May  1741.  xiarried  Grace,  the  eldest 
daughter  of  Sir  William  Chappie,  one  of  the  Judges  of 
the  King's  Bench.  He  was  appointed  Solicitor-General 
in  Decem)»er  1761.  in  the  room  of  the  Hon.  Charles 
Yorke,  and  Attorney-General  in  Noveml)er  1703,  which 
he  held,  nrob.ibly.  till  August  1705.  In  K-bruary  1769, 
he  was  app  )inted  Chief-Justice  in  Eyre,  south  of  Trent, 


f 


DE  GREY,  WILLES,  KENYON.  ^ 

which  he  held  till  June  1789.  He  was  chosen  Speaker 
of  the  House  of  Commons  in  1770,  and  continued  to  fill 
that  distin^rui.shed  station  till  178U.  He  was  created 
Lord  Grantlcy  on  the  9th  of  April  1782,  and  he  died  on 
the  1st  of  January  1789, 

58.  Sir  William  I)c  Greij  was  appointed  Solicitor- 
General  in  Decomher  17G3,  in  the  room  of  Z\r  F.  Norton, 
and  Attorney-General  in  August  1700;  he  was  made 
Chief-Justice  of  the  Connnon  Pleas  in  January  1771,  in 
the  room  of  Sir  J.  E.  Wilmot,  resigned.  He  was  cre- 
ated Lord  Walsingham  in  1780,  and  died  on  the  9th  of 
May  1781. 

59.  Efmn-^l  Wilh:,  was  app.jjnted  Solicits ,r~General 
iu  August  1700,  in  the  room  of  Sir  William  do  Gi-ey, 
and  in  Juno  1708,  one  of  the  Justices  of  the  King'J 
Bench,  in  the  place  of  Mr.  Justice  Hewitt. 

GO.   Sir  Lloyd  KeiufOH,  of  the  Middle  Tentple    was 
on  the  20th  of  April  1782,  appointed  Attorney-General 
m  the  room  of  Wallace,  who.  howeyer,  was  restored  on 
the  IGth  of  April   1783.  and  <,n   the  20th  of  December 
1783,  ho  was  again  appoints    Attorney-General,  acting 
at  the  same  time,  as  Chief-Justice  of  Chc-ter.      Such 
shifts  of  policy  show  the  distracti.m  of  the  times       He 
was  appointed  Master  of  the    Rolls.       I„  J,„,  j^^g   ,^^, 
was   raised   to  the  yet  higher  oflico  of  Chiof-Ju.tice    of 
England,  on  the  resignation  ol    Lord  Mansfield,  an.l  was 
at  the  .same  time,  create-l    Lord   Kcuyon  <,f  Gredin.rt<,n 
•'.the   county   of    Fliut.       He  dio.l  at  Bath   on    the    2.1 
of  April.  ISdj'    w!!i!(>   ('lii,.f  l„  ..;  ,  .  . 

1  "H.K    '^'iRi-.)u,>iU'i-,  custos  rotuloium  of 

Hiut.hiiv,    and  one  of  the   Goyenior.  of   the   Charter, 
iloiise. 


(4  «9 


3t3 


ARDEN.   M.VCDONALD. 


CI.    Sir  Blrlard  P.  .I/v'  /^  tlio  second  son  of  John 


Anion,  of  Ard 


en.  in    Clii-sliirt..  was  t'diicated   nnder  tl 


tuit 


le 


ion  of  Tlixor.  tlic  editor  of  I?iitK'r"s  R 


einains.  and  pro 


ceoded   to   Trinity  Cnlleuo.  CamhricJjre.  wherein  he   dis- 
tinguished liiniseir.       He  took  his  M.  A.  detrree  in  1769. 


He  was  ealied  to  the  bar  In  the  Middh-  Temple  Society, 
and  Ava-  api)ointed  Solieitoi'-General  on  the  2tith  of  De- 
criuher  \~)^:\.  and  Attorney-General  on  the  odtli  of 
Mireh  17S4.  lie  succeeded  Sir  Lloyd  Kenyon  as  Mas- 
tor  of  tlie  Uolls,  in  17SS.  lie  was  appointed  Chief- 
Justice  of  the  Couunon  Pk'as  in  Ma.v  1801,  when  he  was 
created  \Am\  Alvanley^  and  he  died  on  the  19th  of 
:^larch  ISOt. 


(i2.    Sir  Ari-hUmUl  JfinJondhl  w 


Its  l)urn  in  1747.  the 


'HI  of  Sir  Alexandei-  Macdonald.  of  Slate.  l)v  the  Lad^ 


Man 


aret  Monti:-..ineiy-.  the  (hmuhter  of   the  Ea-1  of  E"-- 


liiiffton.  and 


ca 


n-se.  the  hrotiier  of   the    late  Lord 


Macdnnald.       \\\<  education,  h 


entered  AVestniiust 


'\ve\er.  Avas  English  ;    he 


ei-  Sclicol  in   i7(l().  at  the  ajre  of  thi- 


tec'ii.  and 


a-^  eiected  tt)  Chri-t  Chundi.  (' 


ird   in   I  ) 


17<i4. 


He  w;!>  elected  UepreM-nt^itive  in  Parliament  for  Hind 
in  177!.  and  fur  .\e\ve,i~tle  under 


he 


was  appointed  oneof  tlie  Kino- 


one  of  the  JudL'-es  for  A\'aU 


in 


Mas  a 


ipnmted  Mlere-sor  t(i>ir  Ki( 


iJiie.  in 

s  ( 

onus 

7Sn. 

In 

hai'( 

IP   . 

on. 


l7Sllaiid  17.S4; 
cl  in  1778,  and 
April  1784.  he 
.Vrden  as  Soliei- 


toi'. 


lieiir-al 


ami  111  >(■}) 


tei 


iilie 


i:i<diard 


1  I  i^S.  he  also  sn 


;is  Att<'riie\  -(u'lieial.     Jn  |. 


ippointed  Chief  i;:irnn  oftllc   Kxcl 


cceeded  Sir 


'eliiiiai\   179;>.  he  \\■a^ 


.>ir 
Con 


,\   I'C 


ie(|uer.  m  the  room  of 
ho  \\,i>  piMiic.ied  to  l.eChief-.IiKticeof  the 


miiiii 


ami 


ir  A 


rcliif>aid  \va- 


Council)r  on  the  ^")t 


"A'oi'ii  a 


'rivv 


V    Alter  d''di;iri;in'r  tl 


irreat  trust 


L\MB.  JACKSOX,   KEMP.   SMITH,   ETC.  37 

for  upward.s  ,.f  twenty  years,  with  sati.sfaction  to  him- 
se)'-an,l  benefit  t„  the  public,  he  gave  in  hi.s  resigna- 
tion on  account  of  the  faih.re  of  his  eye-sight,  in  Ox^to- 
ber  181b,  and  on  the  Gth  (.f  November  Ibllowing  he  was 
created  a  iiaronet  of  the  United  Kingdon,  in  considera- 
tion of  his  long  and  faithful  services. 

0;:i.  S/r  Matthiw  Lamh,  who  succeeded  Mr.  Fane  as 
C.)unsel  to  the  Board  of  Tra,  n.  1746.  and  died  in  No- 
vember  1 70S. 

(34.  IiichardJacf.,0,..  •,  was  appointed  Counsel  to 
the^Boaru  of  Trade  in  Anril.  1770.  and  died  ou  the  Gth 
ot  May  1 ,,  ,  p,;,.,  c,„„,ii,,  ,,,a  CK  rk  of  the  "aper 
Ofhce  in  Ii-eland.  an  office  which   Lon'       nves  had  hdd. 

0...    Wdlunn   K<mjK   Barrister-at-)aw,    who  died  A' 
torney-C.eneral  of  New  York.  abou.  the  vear  1793 

bO.    II ///.V,,.    s,    ,^.   ,,!.,,   was  a  law;er  of  the  same 
Irovince,  and  da-d  (Jhief-Juslice  of  Quebec. 

(i7.  J<ime.s  IIoh/,hii,.  •>!'  Miirvland. 

08.    WiUlam  Pam.  of  the  sjuue  Province 

G9    The   /A...  y...,y  j,,i,,,,  ^^  _^^^  ^^^ 

the  Council.  „|   rhc  simc  Province. 

,.:^-   f'^'"  ''■   l^<-tor  of  Laws,  was  born  i« 

i;;,'''^:^:;7  -u.y  in  Hatton  Canlen.    Choos- 

H-^thec,vdlau-A„.hisp,.,.lession,he  rcceivec.  uni^ 
versityodu..at,.,nar(^.,,,l,nd,...  He  .s  said  to  lu.  e  ob^ 
'"'""'   ^;"  "'•^'    l—^-"   '-   urran.....    the   i),.ke    of 

^^•''f'::   '■'-'•-  -'-^"i--Il.-.f  the  rnivcr.v 
''     ;"""-"'r      "—'-t.-l  Master  of  TrinUvCl 
II.  111.  k.  M>,      IIimIisIiii..;,i,,Ih.,I  1,1,   ,,;!■ 

>■    '■'•■.'-"-iPli.ii.i-il.li,.    Kill,.  A,K.,™.. 
""  '"  '"  •^"-  ^-"-K''  ll^'.v,  «!„>  „..s  „,..„„„..,|  ,.,  I,, 


« 


38 

Judfro  of  tiR'  A  relic 


MARRIOT.   WYNNE. 


iTiiS.    1 


)v\n'j:   t'.icn    \ 


Caiiibridiic.  In-   piv 
Ixvh  .  to  tlu>  Kill"'  < 


s  and   tlie 

ri('i'-(,Miiin 

viUod  the 

f  Den  marl' 

Piero<rative  Courts'.  In 
•I'llor  ot'  IIr'  UnivorHity  of 

lionois  ol'  tliat  illustrious 
;   at  Newmarket.    In  1769 


ho  p.iblislied  ••  Till'  Ki^ilits  and  Privile<j:e.s  oi'  hoth  the 
rniver.sitii's.  and  of  tli(>  l'niver,'^it\-  of  (.'ambridjie  in 
particular,  ddended  in  a  Cliariro  to  the  Grand  Jury  at 
the  Quarter  Sp-;si,,n-:  for  the  Peace,  at  Camhndjie,  ()cto^ 
her  the   KUii.   i7<iS;  '     1,,.  also  piihlislu'd  his  araument  iu 


,i.s 


the  case   of  the  Collc-cs  of  Christ  and    K;U|t«uaei 
pootrv    may  l»e  st'eii    in  Dodslcv  s  Collection.s.       He  diK- 


n 


tiniiuislu'd  liiinself  1»\   ll 


le  acntei  ess  of  Ids  ;in,> 


wher 


examined  at  the  liar  of  the  House  of  Coiiuw»u.s,  on  tke 
Que!);-'  Conslilulioii.  lie  w  a-  appointed  .lud'.'-"  of  the 
lli,t:li  Court  of  Aduiiialiv  in  the 'ooin  of  Sir  (ieorjie  Hav. 

and  at  the 

aye  of  7-  he  died.    ,,n    tli.     :.!lst  of  Mar/lj   ISU;!,  at   tyeo 

I"    iiioininu.    whiU'  sittin-:-   im   hi.s  chair,  at 

wiiistead  II    II.  neai'  Su  il.iii\    w  hit  I4  he  had  represented 


lit-  r(si<;lied   this  liiMJi  (ilbce  in  Oetoher     I  7'.)S 


T 


in    t 
II 


in  two  I'arlianient-       His  1 


t'.irned  and  dn^iul'ir  j'idjiniei)t 
lilt  <if  \dm,ialt\,  in  the  case  of  t^c  .ship 
Cohinihns,  is  piiMishe.'   in  the  Collectanea  Jnridica.  ,ol'. 


jn  the 


H 


i-li 


71. 


a- 


,n 


I  I  Klin 


have  foil 
'f  h 


>lii!i'.    Doctor   di    Laws,    .seems  t^^ 

10  the  rou 


i.\<  d  the  (rack  of  Sir  , lames  Mnriot 


of     111- 


ill's 


ij'o!e.s«iiiii.  w  liii  ll    ha 


•en  dignified  I 


>\    s(i   iiinnv 


C'lniiK  i,t    men.    w  ho  wert- disiinHuJ.he.l  li\     Mieir    talents 

1(7'"^    he  was  ajipointed  \'icar- 


(MKI     pinlilt  \ 

du'iu'ial   of  I, 


11  (»ct..l,,  , 
pl'o\  nice    t 


i|    ( '.iii!erlini'\     and    hi- 


le  decease  of   Sii 


tv's   A<lvoeate-(!»'ne-.il       OntI 

ciot,  was  elected  in  l;i>^  room    Sir  Win   \\ 

Majesty  M  Privy  C 

Court  <tf  Cant   I'l 


.M 
.1    M 


iies- 


III- 


\  line,  one  of  hi- 


'onm  ll  (  Mii'ia.  I'micipal  of  the  Arcl 


les 


ir\ ,  Maslej-  of  the   I 


|e|oKMti\  e  '  '11  irt  ol 


nmvE:-.  UE  urrr.  i-e.-iple. 


C«nt<M-l)ur\ ,  (. 


99 


oimniHSiirv  of  the  Do 


(uul  Mrtsfor  ..(•  Trinity  Hall,  Canihri,] 


norv  oi   thf  Arrl 


72.   ,/o//;/    /,',,/'(. V. 
7".  ./'V/y/  /V  H 


bec; 


/^/  na.s  i)„rn  of  a  iioMo  tkniilv  in  1( 


I) 


uno|R.n.sionan  <.<n,„,|H>,.ht..,„,| 
Hid.    Inton.lant  of  (he  Fiefs,  and  K 


les; 


»::•) 


pensionary  ol'  Hoi- 
<'*l'('r  ot"  the  S(m1.. 


ways   conmiand  su 


I'l'CSS. 


..nn^  trouh'ous  (nnes  he  govern..!  Holland  with  ,. rent 
Hl.dity.   thonsfh   he  eoul.l  not  al 

He  rxciudcl  William  the  Third.  1 

Ids  eon.-^titiitioua!  share  in  the  - 

I'    was   (herenpon  attacked    \,\     t 


niice  <,f  ()|- 


mi;e.  Iroi 


n 


H 


"venimcnt  of  (he  S(af 


r 


rniee  of  (),•!, 


"""•    a.-sas>in> 


hnt    t 


ii/^e  was   rest 


ire 
Th 


u 


"  ,U''''a<    Mii'i 


•■'•»'"  <•>   til"   Staddioldorsh 


lime,  within 


(I 


••"idd  ii(i(  .v.ii 


(■l\ 


«'M>t    a;    (1 


le  satne 


le  same 


'nvd  ;  ai: 


,1 


"''!"i''lie  :   .iiii(u.'il   IK 


Witt  to  (1, 


'   I'oiiuJai-   tiinndt 


I'lisations  en 


I'eoph 


!"•">'■•    which   sarrilic,.,!  \h 


pass,, ,11,,,     ;,(      (!,,,     ||, 


K'.l,   re,K.a(in^r   ^ith    hi-    hiM    |„,.a,h,    I| 


!'-'ie,  ill   1(172  :  h 


JicsUhi  t-t  t, 


'4.    Sir    n 


<  IK  I : -,1,1  fir  ipnsiti 


'ir'nn.  ((• 


>!'i<tni 


III  pi 


I    W; 


don,  tl«eson.,tSir\Viiliani  1 
♦•'••"(■  (li,.  |{..||s,n  I,,.I,,„|  , 
n<'jny  HaniiiKMi.l.       |{ 


ii'>ni  III 


nl-,|«'c 


l<;-)( 


«). 


»'ll.|>lc,  ol 


».  at  r. 

H-I'll,    .'11      I     M; 


on- 


\    a      ivt 


'•I-    o(    (h. 


irned 


l«'^'''.   (-'ami 


e  Was  a  .s( 


"'      •',    under   (I 


'"''■"I  al   Kiiiaiiii,.]    <',,! 


^oiiie  (ravel, 
the  1 


K'  »'nidM.     ( '||,| 


ledre'i  ( 


Word 


\rt 


'■^"'■|'""<'n.      A(  the  ivM 


"  •■"   private  |jf 


IT 


•lIKl  With  .1   \  i 


Ol  ition.  I 


••«   of  S.T\ 


•'  i"  li<'laiid,,|iiri 
"'  I'diriud  lu  J- 


"ff 


dator.     H 


<■  i^  <liie'| 


'''   "«l">e(.iiii(i\,,.h„.(| 


in  KKIS,  and 


SI'l'Dl    I  I 


\   pi.'ised  f 
l\.  lur 


y,  a.H  a  iic"-(i- 


"'•>^'''dinLr  th,.  trip! 


I'llMlll  lllir    the   I 


e  I'-a^ne 
Marriai:c  i',^  the 


'l''   MIIIM    Wl|.i~.' 


iniud 


'""'"'"  ■""""*-'reat,ii„U',K„I 


"II  virtu. •  lie  lit 


\V,t|, 


^'>«<^  intent. 


^ITlIO    boll!    icI.N    til 


"'I''.  iTted  aiiii 


\l 


or  can  tlu'ir  oi 


<•  n.iKO'  <'ri>w,I, 


II 


""  «ttil.(>om  h 


amors,  tier,-,-  iii„>  l„uj 


OR^f   «... 


40 


TEMPLE. 


Princess  Mary  with  the  Prince  of  Orange.  Both  DeWitt 
and  the  States  of  Holland  ex])re.ssed  their  satisfaction 
■with  the  conduct  of  Temple.  After  the  peace  of  Nime- 
guen,  he  was  recalled  from  Holland,  in  February,  ir.78-9. 
He  now  applied  him.self  to  his  private  studies.  He  died 
in  1700,  at  Moor  Park,  near  t*andianK  in  the  seventy- 
first  year  of  his  age  ;  leaving  a  character  for  principles 
and  knowledge,  which  has  been  drawrt  in  very  opposite 
colors,  })y  very  difleient  parties. 


I* 


OPINIONS 


OF 


EMINENT   LAWYERS 

ON  VARIOI'S  POINTS  OP 

ENGLISH    JURISPRUDENCE. 


J'^irsf.  Tlie  Ki 


and  rrc'laiid 


ng,  Mho  wears  the  C 


tiirv  lu'l 


oii)(nN  tlie  sov 


row 


nofGrentBriUfn 


»f  t] 


<»n^'infr  to  the  Maine  ( 


-''•^■'gnty  or  the  general  terri- 


ti 


11"  iiihahifant.s  tl 


••">'  "<'  the  ex-i.sti„,r  Ih 


'fr*-">f,  uiKhT  the 


'••»"n,  with    the  all 


"«  iHvv.     The  foil 


i<'K'ance 
various  modifica- 


f"arknowledKethetn.thofih.. 
''  l''-'"«''plo  of  the  estnl.li.'l 


nicnt 


lat 


lowin^r  opinio,,,. 


Meem 


'"^'•'PnTo^rative,  within  tl 


The   K 


'x'  consid^.r,,,!    ^ 
''v/'/'y//aiftho,-i(y      :j    (J,-  j 


,   l"-"P"'^'»<"n,  as  a  fnnda- 


ion. 


K-n, 


'    Of  the  K 


i'l^r's  ErrK 


loMil 


I'l'To^.rtive,     ii,     ff 


'inder  two  heads  ■   J    ()^ 
'>«  ^V/v7nnthorif\ 


'""^«'  territories.  „,av 


MS 


h\rle. 


ft 


'"■"  -"''"Mtlinate  head.v 
"*""  nf  theeoh,„i,,H 


ilioe( 


";  '■"'^ix-t.  is  ,i,.st,.ii,„t,„ 

'••^t.  The  UisI 


road.     Th 


int( 


V  <•'■  I.ond 


iMUv  s  [ireniirjif 


liiiti 


i\e  fHiHcr. 


IM   MI 


tl 


Je  cojoiiH- 


P'-nor-to  the  anal 


-•'■The  An-hl,i,.|,„p„n 


'>n  IS 
anter 


•Koii." 


nun 


prerogative  pow 


IS- 


ers,  in 


42 


OPINIONS    OF   EM   NEXT    LAWYERS. 


(1.)  T]i(?  opi.iin,  of  the  Aftonieii-OttK'val  Xortkey,  on 
iJu's  .siilrjicf,  in   ITO"). 

To  tlu'  Iliulit  Hon.,  the  Lords  Commissioners,  for  Trade 
and  riiuitations. 

May  it  please  yoiu-  Lordships; 

Li  ohedience  to  your  Lordships'  eoinnmnds,  signified 
to  iiic  1>\  Mr.  !*()])pl(',  Jr..  your  Secretary,  I  have  consid- 
ered of  tile  iuiuexed  extract  of  a  letter  from  Coh)nel 
Seymour,  (ioviMuor  of  Marylaml,  relating  to  the  Jesuits 
and  ])ai>i-ts  thert- ;  and  the  extract  also  sent  me,  of  the 
•'■rant  ol'  the  iToviiice  ol"  >hir\land  to  Lord  Baltimore, 
relating  to  the  <  'ilr-ia-tical  power.  -'\iid  the  (piestions 
|)ropo.<(Ml  tliciTon.  whether  the  law.-  of  Kngland  against 
l{omi>h  priest-^,  are  iu  fmcc  in  the  plantations,  and 
whetlu-r  her  Majesty  may  not  dhect  Je>uits.  or  Komisli 
priests,  to  lie  tunicil  out  of  Maryland. 

And  as  to  the  ,-aid  claux'  in  the  grant  of  the  Provime 
of  Marvlaud  to  |,ord  Haltimore.  relating  to  the  ecclesiasti- 
cal power.  I  am  o|'  .ipinion.  the  same  dotli  not  gi\e  him 
an\  power  to  do  au\  tiling  contrary  to  the  ecclesiastical 
lawi»  of  Kuuland.  l)Ut  iie  liath  only  thi'  advow.-ions  of, 
and  ]io\\  er  to  erect  and  consecrate  chnrclies,  and  such 
power  a-  the  Hi-lioji  i,f  Piuham  liad.  i^  Kai'l  I'alatine, 
i'l  his('oinit\  I'.daline.  who  was  >ul>ieri  to  tlie  laws  of 
Knglaml  ;  and  the  consideration-  of  clsapcl-  i  ii^ht  to  he, 
as  in  Knt  land,  ly  oitlnxlov  mini.-lci-  oid\ 

As  to  the  ipiestion.  whctliei-  the  laws  of  Kngland, 
au'aiusf  Komi'^h  priesl.s.  are  in  lorce  in  tin-  plantations,  hy 
ihe  .-lalnleiii  Jiiiio  of  lih/alteth.  eap  li  .  e\  ei'\  .lesnit, 
•si'niii.  \  in'ic'^l,  or  other  -uch  priest,  ih-ncon  oi'  religious, 
or  ecclc'fiusticul  person,  !)oni    uiihiu   this   r»'alm  or  any 


THE  king's   prerogaTPv-E  ABROA. 


Other    Her    Majesty's  d 


professed,  by  an 
oiiged  ,.r  pretended.   Ihnn  t\ 


l^'K'inions,    made,     ordained 


43 


or 


J 


come  iut 
>tl 


o,  Of  i)e,  or  i-e 


yauthontjorj,n-is,Iiction,derived,"chal 
<^'  of  Puune,  who  shall 


10  ,Se 


aiiv  other  or  her  Ah.jestv's  ,] 


""I'll  m   any  part  of  this  real 


ni  or 


ti-oason.     it  is  ,,lai„,  that  1 


"""llK.ns,  i.s  guilty  of  hig-l 


ion," 


lia 


th 


the  Queen  had  wIr.,,  it 
!»t'en  made,  wlu'tjjer  it 


iiw  e.xtended  to  all  the  d 


1 


U"i''^-<1  after,  as  the  plantations  1 


^vas    made;  hut 
t'xtendeth  to  <] 


»niin- 
■<ome  doubt 


oni'iiions 


lave 


) 


By   II, 


ei'ii. 


ihrtl 


^'    statute    1]  mo.  William,    for 


pish  bisl 


lor  growth  of  po])(.r\-,  it 


piiest  or  .Je>nit.  w] 


'•^  provided  tjiat,  if 


preventing   the 


♦tf  exereisc  any  oti 
popish   bi.^l 


iatsoc\i.r.  si 


lal 


ler 


part  o!'  tho  olli 


''in\-  ])()- 
■ay  mass. 


'•'I'  '"■  I"'''«'.-t.    uithin  (1 


i'  "I'  function  of 


a 


iMM.ions  thereunto  W\on,^ 


lawful! 


:-^iii,i;-.  such  person    I 


"■^   '••■aim,   or  the   do 


pnsonment.  i 


M 


y    <'n,,vir.,.d.   shall    b..  .dju.lged 
'•Mich   plaee   witjiin    tliis   | 


H'lUl 


th 


ereof 


'i)t'st\,  bv  tl 


H'  ai,\ice  ,,(•  I 


ler 


1"»'"^-       I  ;nu  of  upiniou  this  I 


'riv\    ( 


'"   iHTpi'tuai   im, 
'■''"At'dom.  as  her 


oiuicd 


hail 


an 


tions,  the\    I 
Kngl 


•I'liig  doiuinioMs    bej 


'\v  extends  to  the  plant; 


I' 


an< 


Wa  lives. 


""d  extends  (oail  ,„  iests   | 


i<'"^nig  t(.   th. 


rea 


Im  of 


•"•eigneis  a,' 


well 


as 


As  to  th< 


rect  .Jesuits  or  K'omjsl 


pn'stion.  whether  Her  .M, 


'.it's'.N   may  uot   di- 


land.  I 


not  made  d 


■""  •'''  "pi'iioii.  if  (hi-  .1 


|)|-M-sts  I,,  be  turned  ou(  ,,{■  M 


irv 


t'sUII- 


law, 


••'i>z«'!isor  naturalize,!,  ||, 


rouilie 


(! 


"I"  lists  be    alieus. 
■I-  .\Iaie>l\ 


iMai 


i) 


>t\ 


''"'  '"   ''''I""'    Mainland,    ,!•  ,1,;., 


iMa\ 


natural  b..rM  .-ubje.ts.  (| 


be  H 


'V 


er 


""   Her     Majesivs   d 


le\ 


ounuii 


uguiiisi  ,.u  tlu'  last  I 


Oeft 


'I'lore-nieulioih 


■'"■""  !'<■  iMuislied 
'""  "••'>     '"•    pioeeeded 


Ixr  is.   I 


aw 


ii-i. 


■.IM\ 


MUMIIKV 


44 


OPINIONS  OF  EMINENT  LAWYERS. 


i'5 


(2.)  TJie  letter  of  the  Right  Rev.  Dr.  Gibson,  the 
Bishop  of  London.,  to  the  Duke  of  JVewcastle. 

May  it  please  your  Grace ; 

I  troubled  your  Grace  lately  with,  an  account  of  what 
the  Independent  ministers  in  New  England  are  doing, 
in  order  to  obtain  powers  for  holding  a  regular  synod. 
To  what  I  then  mentioned  a.s  deserving,  in  my  opinit)n, 
the  consideration  of  the  ministry,  I  desire  to  add,  that 
it  may  be  a  doubt  upon  the  act  of  union,  between  Eng- 
land and  Scotland,  whether  the  Independents  in  New 
England,  are  any  more  than  a  tolerated  ministry  and 
people. 

The  act  of  uniformity,  1.3,  14,  Ch.  II.,  extends  no  far- 
ther than  the  realm  of  England,  dominions  of  Wales 
and  Berwick-upon-Tweed  ;  and  therefore,  left  the  Crown 
at  liberty  to  make  such  worship  and  discipline  as  the 
King  or  Queen,  for  the  time  being,  may  think  proper, 
the  established  worship  and  discipline  of  the  other  ter- 
ritories. 

But  b}'  the  act  of  union.  6  Ann,  ch.  5,  every  King 
and  Queen,  at  their  coronation,  "  Shall  take  and  sub.scribe 
an  oath  to  maintain  and  preserve  inviolably,  the  settle- 
ment of  the  Church  of  England,  and  the  doctrine,  wor- 
ship, discipline  and  government  thereof  as  by  law  estal)- 
lifihed,  within  the  kingdoms  of  England.  Ireland,  the 
dominions  of  Wales,  and  town  of  Berwick-U'^on-Tweed, 
and  t^^rritories  thereto  belonging.' 

If  by  this  clause,  the  ministers  and  people  of  trie 
Church  of  England,  in  tln'  plantations,  be  made  the  es- 
tal)lislu'd  church  within  the  gttieral  governments,  then 
all  the  re-'t  are  only  tolerated,  as  here  in  England  And 
if  so,  tlii>  <iiMil>le  ill  u.M'  may  be  made  of  pennitting  tlic 
inde|H'ndent  ministers  of  New  EiiL'land    to  hol<l  a   regu- 


THE  K-rXG's   PRER,„iATIVE  ABROAD. 


lar  ■'ynod  the  ostahlishd  dergy  here  may  think  it 
hard  to  be  dehan-od  of  .  liberty,  which  i«  indulged  the 
tolerated  .uun.tors  there,  ...1  the  tolerated  .fn  ste^ 
here  may  think  it  equitable  th.t  their  privileo-eT  hoi 
notel^ssthanthoseortheirbrethrenLN!::!^:^ 

eration  ol  u  ur  Grace,  and  the  other  ministers  •  and  ner 
^P.n.y  not  b,,iudged  improper  to  take  th;:t!:^ 
of    the  A  torn<y-  and   Solicitor-General   upon  the    fore 
mentmned  statute  of  the  .Jth  of  the  Quee,!^ 

August  21   172."i         '  "'  ^"^^^^  London. 

iriNex//,    \urk,.au.l  II  ran/,  in  1725 
To  their  Kxceliencies.  the  l.onls  Justices 
May  ,t  j.lease  your  Kvcllencies  ; 
In  ]inmbh'ol.(.(h"cnce  to  vonr  I-V     ii       •     . 
M^nitied  to  us  bv  Mr     ,     ,      "  ^^'f  —  -nnnands, 
.'several  m-.tte.    "    .  •  "'''  ^^""'^"l^red  the 

tAcal  ni.ttos  ,c(crred  to  „.  hv  letter  of  the  '>4th  inst 
transnuttm-    to  u^   the  <.„  .1        i         •  -"itn  nist., 

,,,,„„  „,„  ,,,,.,,    ,„'.'■"'   f""-'l-  iu.l  re«.ive,I 
1  '       '    ''""'I"M,  coiicernin.--    in    »A 

":r::z::- ::-: ';- ;' ■  -  f^-;:" 

■^I"l      W..     hllUll.iv    .vrtlfv     v..Ilr     \<\        11  • 

«..  (I,  I  '"i\.  \,,ui    hxccjlcncics,  t hat    ii.^ 

to  the  several  matters  of  i;....  ..:..    ,  •     ..    '       '"'  '^'^ 

"  ""•  said  iet- 


4G 


OPINIONS  OF  EMINENT  LAWYERS. 


tors  and  |  aper.s  therewitli  traiismitted,  we  have  been 
obliged  to  take  the  same  as  they  are  therein  stated,  hav- 
ing al  present,  no  opportunity  of  ol)tAining  strict  reg- 
ular proot';  and  therefore,  such  parts  of  this  report  as 
arise  out  of  those  facts,  are  grounded  upon  a  supposition 
that  the  relations,  contained  in  those  letters  and  papers^ 
are  true. 

The  address  of  the  General  Oonventiou  of  Ministers  is 
mentioned  to  be  in  these  words,  to  wit  : 

"  To  the  very  Honorable  William  Summer,  Esq., 
Lieutenant-Governor  and  tVmuttander.in-Chief,  and  to 
the  Honorable  the  Councillors,  to  the  Hcmorable  the 
Kepre.><entati\ cs,  in  the  great  and  General  Court  of  His 
Majesty's  Province  of  the  Massachusetts  Bav,  as.sembled 
and  now  sitting,  a  memorial  and  an  address  humbly  pre-i 
sen ted. 

'•  At  a  General  Convention  of  Ministers  from  several, 
parts  of  the  Province,  at  Boston,  27th  May,  17'Jo. 

'•  Considering  the  great  and  visil)le  decay  of  piety  in 
the    coi  ntry.    and    the    growth    of  many  mi.scarriag^es, 
Avhich  we  may  fear  has  provoked  th<'  glorious  Lord  in  a 
sciies  of  various  judgui,euts wonderfully  t<>  distress  us; 
considering  al.Mt,  the  laudable  example  of  our  predeces- 
sors, to  recover  and  establish  the  faith  and  order  of  the 
Gospel  in  the  churches,  and  pro\  ide  again.st  what  immor-. 
alities  migiit  threaten  to  impair  tliem,  in  the  way  of  gen- 
eral .synods  coiisened  for  that  p'ujMtsc  ;  and  considering 
that    tortv-live   \ears    have  now    diU-d  away  sinre  these 
clnirches  iiave  i|^\>;  .seenan\-  siicli  convention  ;  -it  is  hum- 
bly (K>ired  that  the  honored  (Jcneral  Court  would  expres.s 
tlxir   ((Mircni   f  .r  tiic  great  interests  of  religion   in   the 
country,  by  c.dljng  the  .several  clnn-clics  hx  the  Province 
to  meet,  by  tucir  pastors  and  me.s.sengers,  in  a  syiuwl,  and 


THE  «mo's  ,Rm<Mimn  abhoad.  47 

from  tl,e,„x.  olTer  their  advice  „p„n  ,l,.t  weighty  cj 
con»,dere,l :  •  Wl,.„  „,.,  ,„e  ™i,c„rrin„e,  whereof  we      ve 

ev„,,,e  «  ,.„„  e„-ee„„„  e.,.die„„  to  p.,  Lu.^:Zl 

Ik      i    ,        "T''""''™''     ^''-proposal   we  h,„„l,iv 
ml..,  ...  hope,  fl,.,  „■  i,  ,„  p,„„,,,„^„|  i,  > 

l'>»c'.l  hy  „,„„y  de,i,,,l,i„  co„,e„ueneo,  w.„.,l,v  H      , 
o<  .ho.,e  who„,  «„J    ,,„s  ...ade    .„rwe      e       tTf 

ean>e„ly  wi.hed  the  is,„e  there.,!' ,,,„.    .e  n' , 

£,:  p:t:.::,;;::r,:;;:.:-.;; 

That  (his  .v.s,,|uti,in  „r  d,,.  ji  ,.  ., 

»•."  ~-„t  „p  „,  the  C,„„„-i     ,  ""I'^-entaliv,... 

K»tah,i»hed.i,,,,w,.,,-,,,,  '■.^'■"'^•'■-"'■tl.o 


i 


48 


OPIV'  ,>;s  OF  EMINENT  LAWYERS. 


Ml 


'ill 


I 


and  contains  several  reasons  against  the  address  of  the 
Convention  of  ministers. 

Upon  this  memorial,  the  Council,  on  the  22d  of  June, 
1725,  resolved,  that  it  contained  an  iudecent  reflection 
on  the  proceedings  of  that  Board,  with  several  ground- 
less insinuations,  and  voted  that  it  should  be  dismissed, 
to  which  reMilutioji  the  House  of  Representatives 
agreed. 

As  to  the  <|uestio))s  coutjiined  in  Mr.  Delafave's 
letter,  we  beg  leave  to  submit  oiu-  thoughts  upon  them, 
to  your  Excellencies'  consideration,  separately  and  dis- 
tinctly. 

The  first  question  is  :  Whether  such  pastors  and  mes- 
sengers have  any  jjower  to  meet  in  a  .synotl,  without 
the  King's  license. 

In  order  to  fbrni  an  oi)iiiion  upon  this  jjoint,  we  h.\ve 
perased  the  Charter,  which  is  \\u-  fundamental  Constitu- 
tion of  this  Province,  and  have  looked  into  their  printed 
Acts  of  A.s,senibly,  as  far  as  the  year  1722. 

The  Charter  benrsd-ite  7-""  (>tnl>i-is.  S^"^  Will,  et  Marire. 
A.  I).  lO'll.  and  recite;  two  former  Charters.  ,.ue  granted 
3  Nov.  IS  Jac.  1.  and  the  otiier  1  Mai-.  4  Car.  ].,  which 
was  vacateil.  by  j'lul-iueul  upoi)  a  ,vr//v    /"■■.,  in  Trinity 
term  l(iS4.      In  ;jiis  Cb;iitcr.  uotiiiug  is  contained.  t<'nd- 
ing  to  the  establisliuicnl  ol'  ,,i,y   kind  of  clmicli  govern- 
ment or  ecclcsinsticaj  autboiity  in  tliis  colony,  but  there 
is  thefbllowingclauM.  :   Ko,-  fl„.  greater  ca-c  and  encour- 
agement of  (Mu-  loving  subjects   inhabiting  our  .said  Pro- 
vince or  Territory   of  Massachusetts  J{ay.  and  of  such  as 
shall  come   to    inhabit   there,   we  do.  by    th-,.    presents, 
Ibr  us,  our  iicirs  and  successors.  gi-,-,nt.  es(ai4ish  and  or- 
dain  that    ibrever  liercaltcr  there  si, „11   be  a    libertv    of 
conscience  allowed    in  the  worship  ^i  M',^}   f  ,  njl  (  hrts- 


THE  king's  pherugat 


IVE    MUiO.vi). 


ti"an^  (except  papists)  inhabi 


or  be  resident  witliin  our  said  P 


49 

tin-  or  which  shall  iuluibit 


Bv   the 


roviiice  or  Territory 
power  given  by  this  Charter  to  the  ( 


Court  or  A-sembly  to  make  laws  and 
;ireauti:,.-i/ed  to  dispose  of  mat 


'cneral 
impose  taxes,  they 


th( 

reli; 

defend 


■;ir);L'ct; 


inhabitants  of  the   said   P 


ters  and  things,  where) 


•fhV 


•loiisjy^  j)eaceablv  and 


rovince,  may  Ik 


ed,  so  as  their  liood  1 


eiviMy  govei'ned. 


protected  and 


may    bring    the   Tud 
knowledge  and  obed 


de  and  orderi 


lan  nati\es  of  tl 


V  (•onvei-sati( 


)n. 


HMice  of  the  oidy  true  Ciod 


vior  of  mankind,  and  the  Christian  f,itl 
Charles   J.,  ia  p;.    ...m    .   ., 


le    country   to    the 
ind  Sa- 


ro\a, 


be  tl 
bett 


■lis  said   lett( 
intention,  and  the  ad 


'.    \vhich    Kin.r 


'\\a.- 


I  us 


le 


pnncipal  end  of  the  sai<l  nl 


'i->-    patent,  declared 
^'ntui'ers-  f,-ee    profession  t. 


to  all 
said  I 


t'l'  manitaining  lil,eit 


plantation;    and  tor  tl 


y  oi  couseie 


persons,  at  any  time  I 
i-ovince  or  Territ 


iK'e  therebv 


je 
granted 


oi'\' 


"•".g  and  re.iding  within  tlu 


Tn  the  Acts  of  As.^enibl 
c'cclesiastical  authoritv  :  but 
ing  that  every  town  shall  b 


>  •  "e  lind  nothiuii- 


licrt'  are 


able,  1 


earned  and  orthod 


't^'    pi'osided   of 


relating   to 
■■^ome  Acts  direct- 


flefhiing    what    tl 


"^  nnnistei-orminist 


"ne   or    more 


there 
them. 


are  otlu'r  Acts 


H-y    nitend    bv    that    d 


»'i's.  without 


escriptioi! 


"ppomtnig  methods  i 


;nd 


And  ill  tl 


passed,  \v 


•uade  to   the  ( 


le  second  yeai'  of  Jjis  .A? 
i-^  enacted,  that 


iciel)\-  if 


I  lest \ 


oi-  niaintaiin'm^ 


'■'•',^",an  Act 


'ciicral  < 


or  district 


ourt  or  .\. 


upon    ivpreseiiti 


destitiile 


-ciiiiih.  tl 


IS  provided.  ,,r  d 
•support   of  tlH.i,. 


"'   •'  "liiii^t.'r,  .pialilic.l 


lion 


I'    •■Ill\-     tow  II 


J'-rovide  an 


"  '"  -■■'••'•t  to   inak 
minister,   the    (i 


'y   law 
or  ilie 


•'  >-<'nd  an  able.  | 
■'^'•*"''  conversation,   bein^  i 


e  due  pro\  i^i,,ii  | 
'"''■'■''    -^^semblv  shall 


''iii'iicd,  ortliod 


irst  I 


"V  minist 


vv.   e 


ec(jmmended  bv  tl 


iree  or 


i 


50 


OPINIONS  OF  EMINENT  LAWYERS, 


more  of  the  settled  ordained  ministers,    r  may  lay  a  tax 
for  the  maintenance  of  the  minister. 

From  these  letters  potent  and  laws,  v^-.  .:'auu.'.'t  collect 
that  'here  is  any  regular  establishmci  j  ;  national  or 
provin-ial  church  in  thi>  colony,  ->o  •  :  -,  irrant  the 
holding  of  convocations  or  synods  ot  the  ^  -^y  ;  but  if 
such  synods  might  be  holden,  yet  we  .-^y--  'o  be  clear, 
in  point  of  law,  that  His  Majesty's  su^  Ciuacy  in  eccle- 
siastical aflairs,  being  a  branch  of  his  prerogative,  does 
take  place  in  the  plantations,  and  that  sj-nods  cannot 
be  held,  nor  is  it  lawful  for  the  clergy  to  assemble  as  in  a 
synod,  without  his  royal  license. 

The  second  questiim  is  :  How  tar  His  Majesty's  prerog- 
ative 1  .ay  be  c(mcernc<l,  in  Avhich  an  application,  not  to 
the  laeutenant-G'overnor,  as  representing  Hi.-;  Majesty's 
p<^rso-.,  but  to  him  and  the  Council  and  House  of  Rep- 
resentatives '] 

We  conceive  such  application  to  be  a  contempt  of  His 
Majesty's  pre.-ogi.tive,  as  it  is  a  public  acknowledgment, 
that  that  poAver  resides  in  the  legislative  body  of  the 
Province,  which,  by  law  is  vested  only  in  His  Majesty , 
and  the  Governor.  Council  and  Assembly  intermeddling 
therein,  was  ar  invasion  of  his  royal  authority,  which  it 
was  the  parti  ular  duty  of  the  Governor  to  have  with- 
stood and  rej^^ct'd. 

The  next  rpies  ion  is:  Wliether  the  consent  of  the  Coun- 
cil and  House  o  it  ^u  .'seatatives  be  a  -ufHcient  author- 
ity for  their  holding  a  synod  ? 

We  are  of  opinion  such  con.sfnt  will  not  be  a  sufficient 
authority;  but  we  beg  leave  to  observe,  that  it  does  not 
appear,  by  the  papers  transmitted  to  us.  that  the  Council 
a^d  A^stjmbly  have  giveu  their  cuusent  thereto,  but  tiun 


THE   kiTio's  PREROGATIVE  ABROAD.  5^ 

the  H.n,se  of  Representative,  upon  voad:ng  the  re.ol«- 

T    /  -n  ^r"    '  "•'"'™"^  '^''  ^''^'^''^  consiJeratiorr 
thereof  till  the  next  session,  to  which  resolufon  -  I  ad 

journment,  the  Council  concurred  and  the  Govern.,  .ub-' 
scribed  ms  consent. 

The  „«f  quoHti„„  is :  If  this  protondcd  .v„„d  ,houM 

M   th„  matter  ar.  i-eoeived  l,.v  the  Lieutenant-Governor 
what  can  he  done  t„  p„,  „„  „,„  ,„  ,|,^„^  „,„^.,,___,  ,,-"""■- 

fleh.nnbly  apprehend,  that  in  ca*,™„  ,y„,^  „h„„u 

he  aetually -„t,n,,  yet  the  Lictenant-Oovornor,  bv  „, 

erfretn  I„»  Majesty  .,r  y„er  Exeelleneies,   ,„,;    'Z' 

.h™  „  cea«o  their  .neetin,:  and  that  for  thi,p„rp„ "^ 

'"«y   1.0  pr,.per  that  he  sh,„dd  l,e  directed  i„  '  Jf^^ 

-.1  H,»  Majesty',,  prerojati,,..  and  that  thev  do  forbear  to 
".oet  any  n,„re  ;  „n,i  if,  notwithstandin,  that,  the.  1„ 
conttnue  to  hold  their  asse.nbiy,  that   the  prineipa  t" 

meaner.  B,,t  we  appreliend  no  ,„r„,„|  „et  »h„nld  be 
done  .0  d,«olve  the,„.  beoa„.«  that  mav  imply  tha"  th!^ 
had  a  right  t.i  a.s.semble.  '  ^  ^ 

The  prineipal  dilKenlty  in  this  e„«Mv!n   Ix.  if  the« 
should  be  an   \el  <.f  n...  r  ...      i  ^,  '  ^ 

».      .  .t  then-  n.eetM,K.     And  we  ...n.-eive,  that  if  .;neh 
A.t   si,„„„    pass   n,    '1-  nature  only   .,f  the    ,x.s„h,t„„ 
c.menta,„ed.itwi,,,,aven,Mdh.e,;hut^ 

granted  by  the  Charter,  , ::;:;:;  ,,;;:'„7 

^    ^   ^"  -^^'  ^"'    "l''»'"n    up„u    the  c.:-cct 


.0  . 

'fl 


■M 


OPIMOX^  OF  EMINENT  LAWYERS. 


ami  (>onscrjiion<-c  (.I'siirh  nn  Act.  without  .^ociiia:  the  Act 


itsoli 


Tlii>  \\\<{   (nic-t 


ioii  is  :    What  mitlioritv  t1 


i()S(>  inmistrrs 


ii'iiiij,'  so 


O  do    !UiV 


liiiAi'  to  meet  in   :i  (ieiicial  ( 'Duvontion.  iiiid  1 
S(Mnl)lKl.    to  lujike   \\\v\    jui'-i  nt    a<l(li-("<se-^,  or  t 
otlu'r  ])uhlip  iiot  ? 

"\\  f  a|i])i-cln'ii(l  liiai  Mich  iiuvtiiio-  i>  not  niilawrul,  pro- 
^i<I('(l  ihc\-  do  not  take    upon    them  to  do  an\-  antiiorita- 


tive  act,  ijeiii"'  onl 


\'  a  \irliint:ir\   sucicl\ 


ami  tli('\   iiia\' 


awrnll 


\   make   adiu'esses,  eithci'  to  thi'  ( 


n'  (  rown  or   to   t  lie 


General  Court  or  Assenil)! 


V,    III    ease    the  siihifct  malt 


er 


of  sueli  addroNfie.^  he  lawful. 

It  IteiuiT  takcMi  notice  <.i'iii  the  ad 
Conventiou  of  Ministers,    li 
desired,  wms  holdcn  fo.-tv-fiv 


(h'css  u| 


the  fiencral 


lat    ^iicli    a    <\  nod    a-  i>  imw 
e  \  cai'-  a-o  :    wc  caiiiidl  hrli) 


-ei'vim;-    to  xoiu'    Kxeelienoies.    that    tl 


II-   computalit'U 


falls  in  with  the  y«'ar  ItiSd.  and  that  t  h.'  tnnnci- ( 'har- 
ter,  upon  whieh  the  ^oxcrnniciii  ..I  (hi-  riovinr,.  de- 
pended, was  repealed  In    win-  facids.  in  the  \.ar    h.Sl, 


and  the   new   Charter  fjranted   in   the  \car  IC'M  :   i,- 

whence  it  appears,  that  such  >\  m  d  m-  .\--cinl'l\ .  was 
holdeu  a  short  time  hel'ore  lln  icpialiim  i.f  their  ol,] 
Charter  ;  hut  none  Hince  the  p-antin^'  of  ih.-  mu  nnc 

All  which  is  huml)ly  .suhmitteil  to  your  Kxeelienoies' 
j;reat  wisdoni. 


Sepleinher  20,  172") 


P.  Y 


OHhE. 


i       KO 


[(',.,: 


THE  KINTt's   prerogative  ABROAD. 


(  1.)  Th<  opinion  of  ^fr.    II W,  in  1710. 


'■///f  /, 


> ,  I'l-scnf  to  racdiif  h 


ilie  K 


tit  hi- 1, 


53 


tnfja 


)it(t. 


\    "I  .111^  A.  t   i.nsso.i   in  the   Geiioral   Assomblv    of 
I  .M:ircli,  1(;(12.  n])„ii  which  .a  ri<rht  of 


ii'Liini;!,  the  2 


patrona-o  is   pivtondod  to   he  estahh'slied 


tries  ht 


■] 


in  th 


e    vo! 


Tl 


M    li.f!ffir\  fn  I 


II    Dili  III 


ii  iJ. 


frii 


'■"  ''"■  f'^  preservation  .,1' puritx ,  and 
"•;""l''i-il'lii""in  th,.  Ch.nTh.aMd  th..  nditad 


i^'iMiKin  (if  t' 
"liiiiatr  in  il 


imitv  of  (hir- 


niiii- 


le  NCi'i-aincnt- 


111) 


.()V(.rM()r,  a 


"li'iisti.rs  1...  adn.itt.-d   U 
"s.-'.nntr;,  hntsnrhas.hail.Hndn..,.  ,„th. 


t(.-i 


'"i"iii.'il  that  he   hati 


ii^i'i'iii    Inmi   Minii'    |{i>| 


1  l'(.r('i\('(i 


111-    didi- 


subsc 


riiie  tl 


'"P   Ml    Kn-huKJ.  and    ..hah    t! 


»  '>('  <'()iii(irniil,|,.   f 


len 


tions  of  the  (' 


"  ih..  (iMJcrs  juiil  Caistiti 


IIIM'fl    I 


fahli-hed,  upt)n  \Miich  ihc  ( 


'I    iMiL^iand.  ;ind  the  F. 


iws  til,. I 


,'  e 


t'l  iniMict    tl 


"'    -'I"!    ni,Mi-t(.|-  int 


IIKll^f    1)1 


j'leM'iitatKMi  nf  hii 


tendinii  hiinsell"  a 
presiiinc  i^,   i,a<l 


•"v,.rnnr  i.  hi.,.,,|,v  ,-,.,, n.-t,.,] 

"  '"'^     iiaii>h.    that    vliall 

•'I'  pi'i-siin   prc- 

'■•'IV     ♦,)    this  :„t. 


M  :   and  il 


ni\   <ith 


Governor  xu\^   ( ',  nncil    ,-,r 
cml  to  siispt-ml  and  <ii..nr,.  tin. 


"I'lli-tcr,      s|,;,||,       ,.,,„f 

'  "••   i"'."l'   pnhn,d\    ,„•    |.rivat..K.  th 


'■   'i''i''l.\   ,i.,in.d  iind 


cinpnw- 


ipon   Ills  o!,sfin„t 


til 


e  persLstfiHc.  t 


coniitrv  with   the  first 


I"  i--"n  so  Min.n.Hnir  and 
"  ''"ii'pcl  liini  tu  d.'ii.irt 


liwinerh-  provi.h.,!  |,y  ,|, 
the  2(1  (.f  Afarch,   |(il2. 


'  "iivfnieiice,  iis  it    |,,,|',   | 

Tih  A(  I, 


1   ht'cn 


'"■■'dv  at  diiines  Cftv 


Tliat  1 


I  ",  V// 


lis 


'j'/>i>niti 


nnd 


'"'  ""'   in.'iMn-  an.i    pru,w,rt 


iis,s-Msineiit.s  for  hnild 


""'";-'  "'(■  th,"  h«vies 


mid  rhapels.  provijai,..,    li,,.  ,| 
minister,   tin<i  such  ,.|| 


"•,!;  and  iv|,;nrin,ir  tl ) 


nn-.h 
"'  I'""''   'naintenanrc  ,,r  t| 


e-i 


10 


H-r    n 


mnrpordorly  manaijinc  all 


P'n-orhialafrnirs,   l,r  ,t  ,.,-.aet- 


i 


-I  I 


m 


>  n 


ui 


tn 


•  t 


54 


OPINIONS  OP  EMINENT  LAWVERi*. 


ed.  tliiit  twelve  of  the  most  ;il 


lie 


bv  tl 


iiii'ii  of  each  ])ari.sh  }> 


10  major  uai't  of  fl„«  sai,|  pari-!).  (>hoso  to  he 


tr\ .   out   of  which   nil 


make  chi 


nl>ci-  the    minister   and   vestrv   tf> 


•  ice  of  two  chiirchwanlens  \(>arl 


the  death   ..f 


\ .  NO  in  case  of 


.iii\     vesti 


the    parish,    that     th<'    said 


yiiiaii.  or    Ids   departure   ont  of 


III 


iiiister   and    \('str\     make 


le  ves- 


clioice  of  aiiotlier  to  supply   Ids  room;  and  he  it  further 

«Miacted,   tliat    none   shall    he  admitted    to  he  of  tl 

tr\   that   doth   not    take    the  oaths  of 

premacy  to  His  Majesty,  and  sul 

to  the  doctrine  and  discipli,,,.  ,,i'  the  Cliundi  of  Kn-,'1; 

[Ccpv  of  tl 


alle<j;iance  and   sn- 
iscrihe  to  he  contormahle 

ind. 


eriior    of    \' 


CI; 


'•■  powers    -ranted   hy  the  Kiuir  to  the   (m)V- 
ii'.-iiiia.    for    siipplxinn-    vacant    henelicei?. 


Uise  III  tiie  (, 


i\ cnior  s  ( 'oi 


!imis>ion 


And  we  do  rnrthi  !•  ui\e  a-i| 


and  aiithoiit\    ti 


iiaiit  unto  \  on,  full  power 


churches,  c| 


te  an\    pei-on  or  iiersons    t 


o  anv 


our  said  cojom 
\(>id. 


lapcl^  or  other  cc(desiastical  heiielices.  within 


a-  olttn  as  the  same  shall  happen  to  h 


I  Niiiet\  -ihini    .iiinK.  ,,f  the  K 

(io\  eilior    I 


iiiL^'s    in.-Jtnietions  in  (1 


10 


^ 


11   ai-c    lint    to  prefer 


an\    iiiiiii-tei'   to  ;,ii\   c'cclesiiis- 
*"■■'''  '"'"''i"'''-    '"   'li^tt    our  colonv      u  ithout  a  certificate 

from  the  l.'iHit    Kesereud    father  Ml  <in,j.  III,.   \ 

ol   l.ondun.    of  his    heinji   (•onf<.riiiiihi«'    t;;  the  d< 

"lid  di.s.dpiine  (.f  (he  Chiiivh  of  KnKh.nd.  and  of  u  (r,M>d 

lil 


M-d 


l?lsl 


Ol) 


H'trino 


e  ami   <om\ 


vr.-'Mtinn  ;  and    if  any    person  proleiTeii  ul- 


read\   to  ii  heiieliee.  shall  appear  to  \ 
eitlier  hy   his  doetn'ue  or  niainiei 


0(, 


i\»>   se 


aiidiil 


■f  V'  u  are  to  use  tlie 
IMopei-  and  usual  iuean«  for  the  removal  of  him,  and  to 
supply  the  vacancy  in  .such  niannc        v\  e  have  directed. 


N.  B.  The  power  of  coUatiuj?  to  henel 


ices  in  Virginia 


THE  KliNCi  s;    I'KfclKOG.m VK    \ 


HKO\D. 


i«  fxpm..sly  c'x-<v,,k..l  out  of  thr  Hisl,,,,,  ..f  I.om.I 
ri.sdicfiuii.  and    In    liii 
to  ill's  C'oiiiiiiis.>Jiii\ . 


65 


II  iiNo  fxcc'ptc'd  in    1 


on  s  ,,j_ 
"■<  <'oiiuiii,ssion 


All 


iiiiiii^ti'i-,s  liiii 


15 


isliop.  (1,. 


IIIIMIsU'r: 


tll(-  ( 


lo  x.iiic  \aciiiit 


IP 


uovernor    sends    i|,(.    niim'st 


Jia\  ini;  <vi'\i  I 


'-'"-  ''*"''''^  '■'Miiiiicndiitorv  from  ti 

'"''''"'"•  <"I"''Hrsii<.|.  minister  (,.• 

'I'lH'lifc.  and    accoi(lin.;,dv   tin- 

'■'■   Ml    ii'<'onim('nilcd    (all 


I1-*  ordi'r.s  and    Icvt 


cr 


l''"-'-^li  ;'-  hr  thinks  lit  :  al- 


inionials)  to  sncl 


1  \Mcant 


<».  it   |S   to 


('ifr^x  man 


•  •oinn)^  into  Anier 


"■  noted,  that 


e\"r\- 


tr 


♦  ■a 


>in\ .  a>  tlie  I 


"■■■'■   '•*■'      iM-    t.L'()   ,M|t    ,,)||| 


Mill 


,H'.st\ 


♦■iJJiplaui.^  ei 


-er\ ice 


"|'l".\t-Hl   in     111.     M; 


(^'1(1  n,    Uijetl 
.fl 


Ifl-.     h\     tl 


»l«'fli  not  riaini  the  ri-i,t        rn| 


'"^ver  al.iresai,..   the    K 


u 


atir  1  to  all 


in,-;- 


"■'ii'i'   "le   ri^ht  u|    il...  ( 


I'.insjies  hen 


"k'  :u't  entitli 


tiio  \('sti'ies  fiia  li'rht  ot 


Ministers  (o  he  ind 


i"wn    is  ahridii-ed   h 


net 


'•<l  Mias  toentitU 


Gov 
beneti 


criio 


CCS,  or  Dilantin--  induct 


I'litn.na.ue    '     And  whet Imt  th 
it'n;i  to  vaeanf 


'•  '"•  therohy  restrained  iVoni  coil 


vestry  j)rcsenl  tl 


leir  clerk  \ 


ion,  except  only  wher.    il 


i(« 


Fftl 


th 


"•  vestry  have  the  nVht  ef 


I'v  <an    pliiee    in    li 


(he  I 
tl 


icir  oaii-h 


p.ili-oiiaire,  ulnther 


iceiise  of  the  ( 


'n\     nniu-t 


K-'enior,  who.  di  tl 


'■!■.    uithont 


H'  place  of  the  ordinary  '       (>.- eiin    tl 


minister  ot    tl 
before    tin 
odenee  \ 

Mv  I.onl« 


"■"■  l'l'--nre,  without 
""l"'*"t    iiiilge  having 


'is  ciise  is  |,nt    in 
i"y   remove  Mich 


<'i'     pld\iil 


iin\    oU'en 


coKnizaiici-  ,,]■  Mich 


n   i>he(lien( 


•  o    \dn 


perused    the  al 
<p  test  ions  urisini. 


r   l.'Tdshipv' 


xnniands,    I    | 


"^vo  wr,„.,,  clauses,  and  considered  tl 


lave 


<'«   tlie  Cro 


.i.ereupon  ;  and  since  tl 


«'n  cannot  he  le-'cned 


le 


ic  pnToifiitive 


f^nenii  Word'' whntj^^iev 


■r  ta 


vi'M  a\vav 


cr.    hiit   ,.nlv  I 


■  inv 


'\   i\pre.<s  teriiis     1 


P 


ill 
f-l 

if* 


U 


I 


56 


OPIMUNS  OF  EMINENl'  LAWVKlty. 


fim  of  opinion  that,  notwithstandin,-,' any  tliinii'  contaiiiul 
HI  tliein,  the  Kintr's  j)ri'n»uati\  r  i-oniain^  iinlouchod 
and  entire,  as  to  his  rioht  ol'  coUatiiit;-  to  vacant  ben- 
t'liees.  .  ij„  „    ^Vio.sT. 

Jnne  27,   171'.). 


(■).)    7'iro  oj>iiti()ii-^'  nf  tJu-  Attiinti  ij-(li  luraJ,  Xortluii, 


rihitiiu  to  tin  rl,  fi/i/  of    \ 


tfi/l  IIKI. 


\ 


I1((,1M  \.  latter  cii 


1  ol'  Nov.   I7<>l 


Me 


moranchnii  inr  Cdloiu'l  ()uar 


ranousnes?  ol'  the  (•ler<:y.       Ilis    |';.\( 
the  aliases  in  this  matter,  w  liicli  aic  t 


ry.  '•oncenmii:  the  pre- 


rilfnc\    t(i  prevent 


lese,  viz 


1st.   That  the  vestries  of 


tlii.-    count  \    w  111'  preteiiil   t( 


havo  tlio    ri;:ht    oi'  presentation,  do   >eld 
tually  present,  hut  Hirce  the  nunisteis  to  cut 
ly  agreements,  after  the  \\{\*\\<:-^  o!'ciia| 
to  serve  the  V  lire  liir  so  nuieh. 


I'lii  (ir  iicNcr  ai'- 


er  mill  \ car- 


ilaiii-  (U-  h'ctiM'er; 


'hX 


That  iipdu  any  distu«t<?  tiiken  up  aiiainsl 


I  lie    Illill- 


ister  wiien  liis  year  is  (ml,  tlie\    take  tli 
tnni  "lini  out  of  his   II\  Iiil:.  w  ithniit 


on   I 


e  u|ip(irhniit  \-  tn 
'ihc  1   fnnualitv 


tliitM  tlie  refnsiMLT  t..  renew  the  i.;:reenient,  and  without 
an\ ,  the  h'a-t  ciiine.  eithei-alle^'ed  or  proved  against  him. 


For     reme(i\      w  hiMCuf.     His     K\-ceUene\-     d 


('•^ire--    II 


iipiiiidii  nf  ni\    I.onis  Mr(';inlrrliiir\   and  London,  and 


unc 


ir  t\\  II  I'l'  I 


le  \-iv-\     ci\  ili,iii 


\\  hi  I  her   the  K  inL^ 


or  llic 


ve<tr\     ar  •  the  iialrmi-  i|    (he  ,veveral  einn-ehes,  (here   a 
a  i'np\   nf  till'   Vin^inia   law  aluMit  vestries  is  to    1 
(hired  to  .'  acli  eivjlians)  / 


le    pro 


ncv, 


U  the  ve-lries  an'    patrons,   whether  Ilis  I'^eelle 
us  ordinaiy,  may  prtv-enl  _y///v  ihroUitu  .' 

jHiriMh  MiTUplo   in  admitting  ii  niinist«'r  >.i  pn 


If 


a 


wnted  :   And 

!i   'he  \e;4try,  or  ;ui\    \^\  their  order,  .shut  the  eliurch 


THE  king's    PKEKOGATIVE  ABROAD. 

flooi>   iip').i    hiin.    wliiit    is    tl,,.    pniii>hmeut    of  such 
fact  ? 

jUiiisf,  r-^-  to  h,    Siiiht(t,il. 
riiat  lor  tlic  preservation  ..f  purity,  and  unitv  of  d 
K' an.l  .lisripline  in  the  CIiuicli.  aiul  tlio  rii-l.t  nd 


67 


trii 


oc- 


istnition  of  the  sacraTnent. 


nun- 


>»i<'iate   ill   this  couiitrv.   lait    such  as  si 


11.)  minister   W   a.hnitted  t( 


the    f 


"ill   prinhico  ro 


•••v.'.nor   a    testi,iin„i,.,I   fl^.t    he   hath   nreived  ] 
"'■"'""^'<"'  '•■■<.„,  some  Hishnp  in  K,,,ian.l.  au.l  shall 


Mihscnlie    to    I 


lien 


L'    coiiloniiahle    fo  tf 


txt.ons  uf  the    Chiuvh    of  Kiiuland.  and 


»'  oiih'is   and    consti- 


cstahlished 


f|uesto 


'i|""i    wliich    the    (iowiiHT    is    I 


the  laws    tl 


I  ere 


leiein-    re- 


"  '"    indiii-t  the  sjid 


Hall  make  presentation  of  | 


''"iii-'«'i   inio  any  parish  that 


pretfiidino 


ii'ii-^''!!  a  ininl-ter.  shall 


'"":  ■""'  il';i'i,\  other  person, 


C(^n 


pres-mi..   to  teach    or    pivaeh,    nul 


l':ll-.\    tn  'his  Act 


.ovminraiMl  (',,„iicil  aivherehx-  dr~ired 


i"'l'<'l.\  «>r  priviiteh.   th 


t(t  suspenil  and  -ilence  tl 
Iiis  obstinat 


illid  eillp()\\ered 


"■   pcr-nil  s(.  ('Ilelldilln,   ;,,ld 


upon 


'•  p<'isis(ence,   t( 


'"i|"'l    liiiii    tn  depiirt    the 
''""''■""•'i''y  .1-  il   hath  lu.eii    Inr- 


coiintrx   with  the  Ijrst 

i"»'H>    provided    l,v   th..  77ih  A.'t.  nia.l,.  .-,1  .1 
till-  2d  of  March,  l(i42. 


lines    ('it\-, 


\\ 


lefher,    if 


time.  th.     (' 


•■I  pari  h  .1..  nm 


"iiiiiisv,|,-\  ur  th.'  ( 


l"'"-''iif    ill    a    r,,n\,.|iient 


lie,-,de.'t,    I 
!,M.s<.  ^ 


!'•   '  <.i\  erimr 


•>'    It'll     eiltitl.Ml      t. 


Ill   .a-.'  iif  tl 


lis 


I"''-'"'     I"     Hieli     Ii\ii|M-    1 


»v 


Wh.^t 


I'l'     il    aiM     iiiiiiistcr   I 


i"iicrs.    ,'iii.l  ,dlM\\,..| 


I'    lie  eli'd, 


|\     t 


(i 


|\    til,  III   t 


le   jiarish- 


'\<'in"|-   th.'ivhv     enahled 


"     ser\e     Ih 


'•   cure,    is   the 


iMimto  / 

th.'  ( 


'"  ;;i\e   iiidnctinn    t..    sii.-h 


ir 


<"^cnlor  shuiild  indii.t 


'■•III  the  pjirisl 


iioiicrs   reiit.n  e  hnii  ' 


!iii\   minister  so  elet'ted 


>-v.s,oMl.c,n.made,„r.hel.,nl.lin.oft|,..chure} 


les. 


m 


il 


4t 


I 


'i 


58 


OPIMOXB  OF   EMINENT  LAWYERS. 


and  for  the  setting  out  a  glul)o  ami  other  revenue,  for  the 
ministers  of  those  churclies.  aiu]    the  advoM-sou  or  right 
of  presenting  to  those  ohurehes  being  vested  in  the  pa- 
rishioners  of  eaeh  parish,  and  the  Governor  being  con- 
stituted in  the  phice  of.  and  as  the  Ordinary  or  Bishop 
of  the  phmtation,  to  aihiiit  and  inthiet  presentees,  and 
to  punish  niinister^   preaching  contrary  to   hiw,   hv  the 
1st,  3d  and   4th  Acts  of  >hiryiand,  1   conceive   the   ad- 
vowson  and  right  of  presentation  is  subject  to  th-  Laws 
of  Enghmd,  there   being  no  express   law  of  tliat  planta- 
tion made  further  concerning  tbc  sani<- ;   thert'l'ore.  when 
the  parishioners  present,  and  their  clerk  is   inducted   bv 
the  Governor,  who   is  s,,.  ;,iid  must    induct,  be  is  in   for 
his  life,  and  cannot  be  di-phu'ed  by  the  paiidiioners.     If 
the  parishioners  do  >iot  |iiesent  a   minister  to  the  (Jov- 
ernor   within  six   months  after  any  clnuvli  .-hall  luvonie 
void,  the  Governor,  as  ordiiiai-y.  shall  and  ma\   collate  a 
clerk  to  such  church  by  lapse:   and  tbc  minister  be  shall 
HO  collate  and    place    in  by  lap,<e.  sludl  bold  tbat   church 
for  his  lite.      In  inductin-  ministers  by  the  Govcinor.  on 
the  presentation  .,f  the   pari-be-,   and    on  his  o\m,  c.Hii- 
tion  by  lap-e.  be  is   to  .mc  the  minister  br  (pialilied.   ac- 
cording as   the    Art    o|-  .Man  land    rc.piiiv.  :  and  incase 
of    the    a\oidanc"  of  aii_\    church,  the    (io\,.|nor.   jis   op- 
dinary  of  the  ])lantatiou.   i<,  .according  to  the  Mahite  of 
28th  Henry  VIII    c    I  |.  sec.   6,  to  appoint  a  miui-ter   to 
officiate    till    the    paiidi   shall    pn-cul     oue.    ,,r    the    si.x 
months  be  lapsed;  and  such  person  appointed  toollicjate 
on  the  vacancy,  is  to  he  paid  for  his  servi.e   (.ut   of  the 
l"""'''"  "''  ''"•  'i\  I'l'-     ■Hid  the  next  incumbent  is  to  h.ue 
the   overplus   of  the    profit     ihcr,..f.    from  the    time   the 
chinvb    became  \oid    l,\    the  lau  aiM.\e  -t.ited.       hi   this 
ca^e  nu  niiaister   is  to   olUciato  as  .such,  though   not    a- 


THE  king's   prerogative  ABROAD. 


M 


incun.bePt.  till  he  hath  showc-d  to  the  Governor,  that  !ie 
is  qualified  to  preach  aceordiiio;  to  the  law. 

^^I""'^'l""--  "^  Edw."  NortheV. 


M 


Nortl 


finonuidmii.        (\)](,nel    Quarrv    mive    S 


ir 


he 


lev   ten   uniiieas    iir  the  ul 


HI":  ;i   mistake   in   tlie  title  of  the   1 


il)ove    report  :  but 


them  the  Act  ■.!'  Maryland 


aws. 


and 


instead  of  \"'Vi>-\ 


Edward 
it  there 
naming 


eo 


py  ol  thr  same  (pieriesl.v  (lie  1 


nia.  I  sent  a 


•t  h 


i'urti 


ve\.  Mr.  EmanuclJone? 


ler  Y( 


rmnea 


s,  and  a  iruniea  to  I 


the  follow 


in^-  repoi-t 


port.   f..r  Mhich    he  <rave   him  ten 
upon  Avhieh  ho  made 


lis  eler 


On    ('(insideration  of  tlic    1 


nvs   () 


f  V 


n-irniia,    provision 
hnilt. 


ni.u-  a   (dmrt'h  in  each 


'H'nm-   mad,.    In    tl...  .Vc(  enti,K,|:    '■  ("liurrd,  to  I 
«"•    ('liapel    ,,r  K,,s,.,    fur   tl„.   |,|,i|,| 
parish';  and  l.v  the  Act  entitled 
ilueted,"   mat  ministers  of  ench 
on  the  presentation  of  the  parisl 


M 


iiiisters  to  he  in- 


wai'd 


ens,    heini 


to  keep  tl...  (duirel 
collect  tl 


parish  shall  ho  inducted 

lioners  ;  and  the  church- 

'•v  ♦!'<•  Act  entitle.l  -  Chnrehward 

'  '"  lepair,  and   provide  ornaments,  to 


ens. 


tcr  sii 


"■  iiiiiiisicr's  dues;  ;ind  l)\    tl 


p|"'if   and   mainte.ni 


H'  -Act  for  the  het- 


ince    o 


iH'iim-   m,i(|(.    I,,,.   (I 


f  the  clerfry,"  pro\ 


ision 


tl 


H-  said  .\ct  ilii-  indurfiii"- 


le   inuii-tiM's  of  fh,.  parislie 


and   Itv 


t'>  induct  the  i 
l'<'iiij;  (•on.-tiiNi 


'-">•  a.'i'l    with   a  power  t( 


iiinisters.  the  Governor  ' 


I  ini 


<'<uiti-ar\     to   i||;it 
f«>ns,  and  the   I  i.  hi 


"mister   to    be  presented,  and  thereby    1 
••'l-i'linary.  andas  Mishop  of  the  pknta- 
'    "liiiisteis    preaehijijr 


aw 


I 


punisi 


lun  of  till 


'i'liiion.    the  ;.dv( 


)\V- 


Mlbject   to  ll 


pre.sentatioii    to  the  <  hunl 


-•I"-  "I'  Kn.ixland,  then    I 


K'S,    IS 


a  \v 


that 


plaiitaiioii 


mad 


'iiiue  ,   therefore 


iirti 


>ciM^  no  e.vpres.H 


I'  r    conceriiii 


I"    tlu 


"licii    th( 


l)un.<-hiuiiers  present   tl 


leir 


:■? 


m 


Ml 


HI 


f 


60 


OPINIONS  OK   EMINKNT  LAVVVERS. 


clerk,   and    lie  is  iiuluctod   hy   the    Governor,    (who   is 
and  must   induct  on  the  presentation  of  the  parishion- 
ers,) the  incumbent  is  in   for  his  life,  and  cannot  be  dis- 
placed In-  the  parishionei-s.      If  the  parishioners  do  not 
present  a  minister  to  the  Governor,  within  six  months 
after  any  church   shall  l)ecome  void,  the  Governor,  as 
ordinary,  shall  and  may  collate  a  clerk  to  such   church 
b\-   lapse,  and  his   collatee  shall   hold  the  church  for  his 
life;  d'the  parishioners  have  never  presented,  thev  have 
a  reasonahh-  time  to  present  a  minister;  but  if  they  will 
ni»t  present,  beinn-  re(piired  so  to  do,  tlie  (Jovernor  mav 
also,  in  their  default,  collate  a  minister.       In  inducting' 
ministers    by  th«'  Governor,  (.n  the  presentation  of  the 
parishes.  ,„•  ,)„  l,is  ..wn  collation,  he  is  to  see  the  minis- 
ters   l)e  (pialilied.    accoi^din-  as  that   Act   i'ur  inducting 
ministeis   ie(piires.       In    ,.;,.s,.   nf  the  axoidance    of  anv 
cluuvli.  the  Clovernor.  as  ordinary  of  the  plantation,   is, 
accordin^Mo   the   st;itute   «.f  L'Stb  Ileiu'v  VIII.  cap.    11. 
sec.  .").  to   api)oint   a   minist-.v  to   ollicii-.te    till  the  parish 
sliali  present  one.  or  (lie  sj.x  uioiitlis  be  lapsed;  and  such 
person  appoiiUed  to  olViciate  in  t'le  vacancy,  is  to  be  paid 
for  bis  ...ivice  out  of  tli.'  profits  tbereof.  from  the  time  the 
<'Inuvhb,..',,nies  voidbv  tlie  law  above  stilted     In  tliiscase 
no  mbii^t.M-  is  lo  oHieiate  as  su.^b.  till  be  bath  slu'wed  to 
the    (bncninr    lie  is  (,ii;ditie,|.  .•,ecoidin,u-  as    the  s;,i,l  Act 
for   iudu.'tiou  diiv,ts  ;   if  tiie  vestry  do  not  lew    the  to- 
^^cco  for  the  ministri-,  tbe  Courts  tlu^re  must  (bMree  the 
.same  t..  be  levied.  Ki.w.  Nohthkv 

Julv29.  17u;j. 


THE    KI\(v".s   PREROGATIVE   A 


BROAD. 


01 


(0.)    77/<  \an)f  /mi 


liOid. 


ujer.^  opinion  on  Pop,  I'n  in  M, 


To  the  Hi^lit  }I..ii..  the  Lords  C 
iuid  JMiintatioiis. 

May  it  please  your  Loi-dsl 


'"'!/' 


oinmissionors  for  Trade 


111  ohfd 


lips 


lence   to    \()iir  I^oi-ds|i 


to  iiie  InMr.  J'oppK..  J 


ips"  eoiiuiiMiKls,  si.niilied 


ered  ol'  ti 


^eyi'ioiir.  (iov 


I'.,  \oiii-  .Vcretarw  1  | 


ia\e  cousid- 


H'   annexed   extraet   of  a  letter    lr<»in    Colonel 


erno 


lilt- 


••  "I'  Ararylaiid.  iclatin-  to  the  Jc. 
nnd  papists  there:  and    the    extra-t  also  sent  me  of  tl 
•^■'■ant  of  tiK.  Pruvin...  of  Maryland  to  the  Lord  Haiti, 


rclatini;  to 


llUl'C 


lie  (■(•(■Jcsia^tica! 


'!    power;    and    the    ,jiR-stioi 


I"'"P"-'I  'iMTr,.,:  Whothrr  the  Laws  ofKndand 


IS 


iwMiiish     prMv^l^.  a|.,,     ji,     j 


aii'aiii.-.t 


whether  Ih-r  M; 


"Ire     ill    (li,.    plant 


J<'-'\     ina\-  not 


priest- 


dii'ect  ,1 


"  ''<■  tiii'iied  out  of   Marxland  ' 


itioiis  :   and 
f-'iiits  Ol'  Ivoiiiish 


.\lid;!>  tMl||,.,aid,.l 


"•■'""'•'•"'■^'■milie.raniorthelVovIneeor 
'''7'"''' ''''''-•'■'-' I'-ti-..v.  relating. o, |,e....,.|eMa.- 

""'''"'^^'■'■■'^'"""•"I'inlnn.    .h,..ai,K.do,l,i,ot,.iNehMn 

;"''''""^"'''  ''"'"'"-    'I'in^eontrars    to  the  ...... le^a^l  ^..1 

'"V"'    '''"^''""'^    ^■""-    f-l-ni^     .l.eadvow>onsor 
;""'    '''•"-'-■-•'-Hleonseera,..    ,,, ,,,,,. e.    and    sneh 
l-;--'l,en,d,opor,»urha,nhad,   asKarlPalatine 
-     -<;-i,.M.datine,   .howas..,,ieetto.h.,,a..o; 
J^-,Iand     an,., lK.eon.eenaions  or  ..hap.,.  ,,,,,,,,,,,,. 
ns.nLn.land.l.v  orthodox  ,,.inister>onh. 

nult'r  ""•';""''"'"     ^^'"•^'"•■■^'"•'•-•"•Kn.land 
T    y ":''''^'"'^*^— '"'--in  the  plantation..,,, 

-nuna.,, .nest,  or  others.,,.,,  priest,  deaoun  or  n.li.do' 
or  eocles.ast,ea.p.,..on,ho..„    .„,;,,,,   ,,^^,„^^^; 


H 


iirii 


.  ! 


k 


T 


Hrl 


62 
otl 


OPINIONS    OF  EMINENT    LAWYERS. 


ler     Her    Majesty's  domi 


nioii- 


nuKle 


oi'daiiied    or 


professed.  l.\  iuivimtliority  or  jnri.<(lietion,  derived,  olnl- 
lenged   or  jjreteiided.   Iroiii  the   See  of  R 


oiue.  who  s 


hall 


come  into,  or  he.  or  reiiiiiin  in  any  i)art  (^f  this  real 
any  otlier  of  iier  Majesty's  d( 
treason.     It  is  plain,  that  1: 


ui,  or 


ions  the  Qib  en  had  Avhen  it  w 


mn'nions,  is  ji-iiiltv  of  hisrh 
nv  extended  to  all  the  doniin- 


!is   uiixdv  ;  hnt  some  doubt 


hath  been  nia<ie.  whether  it  extendeth  to   dominions  ae- 
quired  at'tcv.  as  tlie  plantations  Iiave  l)een. 

By  the  statute  llmo.  'William  III.,  for  preventincr  the 


furth 


pi.sh  hishnp,  priest  or  Jesuit,  wl 


n-  orowth  of  popery,  it  is  provided  that,  if 


,hat: 


;i>ever 


diall 


my  po- 


sav  mass. 


or 


exercise  any  other  part  of  the  oUiee  or  funet 


ion  ol 


popish  bishop  or  priest,    within  tl 
minions  thereinito  l)el 
lawfidlv   eonvicti'd.  shall 


Ins   icahn.   o 


r  tl 


le 


(in,<:in,i:'.  siicii  peixm    l)einn-  thereof 


l)e  adnidued  t 


O     T)C 


prisonment.  in  .Mich    place   within   this   kin<;(l 


rpetui 


il  uu- 


Majestv,  b\   the  adv 


om.  as 


liei 


ICC   o 


lu'r  1 


rivy   ("ouncil,   shall  ap- 
point.      I  am  of  oj.im'on  this  law  extends  to  the  planta- 


tions, the 


Knirland,  and  extends  ti 


i>eniu-  dominions   ht'IoiiMinL;-  to  the  real 


m  ol 


priests,  foi'ci liners  as  well  a.s 


native; 


As  to  the  (piestion.  whether  Her  Majesty  may  not  di- 
ish  priests  to  be  turned  out  of  Marv- 


reet  Jesuit- 


R 


land.  1  am  of  opinion,  if  the  J 


esiul 


Ol 


not 


|uiests  1k' 


ilien.^ 


1 


;iw. 


made  .Icni/cn-:  o:-  naturalized.  Her  Majesty  mav,  bv 
I'^iil    .Mar\l;ind  ;   if  the\-  i)e  Her 


f'OlUllC 


them 


Majesty's  natural  l.oni  sul.i<.rt-:.  ilny  ,;iiinof  lie  banished 
ironi  Her  .Majesty's  douiiiiions.  but  may  l„.  proceeded 
against  on  the  la-t  lietore-unuitioned  law, 

October   IS,   17(1.-).  i<;„,,.^  NoRTIIEV. 


I 


THE  KIVg's    PREHOGATIVE  ABROAD.  ^3 

(7.)  The  Bi.hop  of  Lo^/on-.  c,h.a'vatiom  on  a  Law 
or    y>njnu((P»-fhe.^>ippre.,..io„  of  Vir,-, 
Sir:  I  have  ...rei'ullv  pcTused  the  Aot    that    is  come 

^om  In^Mua.  a,.i  am  very  ,nn..'M,f  the  opinion  of  the 
Honorable  Board,  to  .vhun.  n.y  most  hnn.hio  service  -ukI 
t-xouse  for  not  waitin-  upon  then..  I  d.)  fL^.i-  [,  ,'s  -i 
very  dangerous  thing  to  exen,pt  young  people,  (run.  M- 
een  to  twenty.me.  iron,  heing  liable  to  any  punishn.ent 

";  ■'•■"■"""r  '  ■"     ^' ^^-'^ '■-•^-■"b- '- an  indueen>ent 

o  them  to  take  it  lor  an  indulgence  to  all  licentiousness 
diirmg  that  time. 

That^  part  of  the  Act,  likcu  isc.  u  hi..h  n.akes  the  cler- 
gy liable  to  the  same  punishment  with  the  lav  offenders 
x«  to  expose  them  in    the  last   degree,  espedallv,  sincj 
they  are  liable  to  be    corrected    by    ecvlesiastii-al  cen- 
sures. 

T.  ,  If.  LoNnoN. 

i^iLHA.M.  January  2.  1707. 

Mr.  Popple, 

^'ecref>in/  to  fJn('o„imi.^..lo,.   /w 
f>r  Tnoh  OH,/  /'/oiifofinn..: 

(8)  The  Atfnno,/-(^,  „,foI    \'„rM  ,r  . 

•'      '"'""■  .^"/f/n  /x,  opnnnn  on  the 

hnth  >n  hn,,hnnl  an./  1,,  //.,  i  ;,,„,,;,, 

To  the  Kiirht  Hon    the  I  ,,i,l    r 

'>nd  Pi..n,   r         ■  <-"nmss,oners,  Ibr  Trade 

<fn<f  1  lantatioiis. 

May  it  picas.,  vnnr  Lordships; 

,     '"';'-^;""-  '<•.--,.    i.u.Mnp.'c..nnnands.    si-nihcd 
to  nic  b\   Ml-    l>,,.,i.l..    II  •  ,  ,-"1111 II 

V"      '■'■'■'"■""'•""  -  i„.„.,„,,i .,„„,„,,,._ 


[,;  '    I 


:   i' 


t'tl 


IMAGE  EVALUATION 
TEST  TARGET  (,V»T-3) 


W/ 


'^^. 


// 


<■  K° 


L< 


% 


C/jL 


fA 


.0    ^"^  1^ 

II      t'  "^  IIIIIM 


li-25  iu 


1.6 


Vi 


A^ 


'y. 


rm 


-^^ 


//^ 


/^S 


(?;;i 


Photognijihic 

Sciences 
Corpordtiun 


T-b 


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^^ 


-^ 


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4^^ 


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13  WIST  MAIN  STRUT 

WtKSTiR  N  Y     I  4510 

(  716  1  in  4}03 


? 


^ 


r 

H 

I 


m 


<  'I 


64 


OPINIONS  OF  EMINENT  LA>VVERS. 


and   what  inay'ho  fil  lor  Her  Majesty  to  do  in  all  the 
plantations  on  the  like  oceasions  ;  and  I  d 
portifv   to   your    Lordships,    that  ])v  law.  wl 


oniost  humhly 
man 


lere 


'lies   111 


testate  in  the   plantations,  havin<;-  a  personal 
tate  there,  and  also  any  iiersonal  estate,  or  debts  owi 
here  in  En(>-land,  the  rifrht  of  j;Tantin,ir  ad 
h'liiis  t.)   the  Archbishop  of  Caiiter^u 


es- 


"g, 


ministration  be 


istration  be  granted,  in  the  plantation 
be),  that   a(hniiiistrator    will 


a(^co 


ministrator   in   Eiigland.   but  will 
ment  oi"  just  (le!)ts.  if  paid  in  tlw  ord 


n-y  ;  and 

s,  also,  (^ 

untable 

allowed 

k'r  the  h 

nui- 


<  i".  that  is  to  sa\ .  *\w  wl 


if  ad 

vhieh  may 
to  the  ad- 
the    pay- 
iw   allows 
lol"   person.i!  estate,  in    Ku'daiid 


and 


0  s 


lie-plantations,  will  be  liable  to  all    the    iiitestat 
debts    ill   both  plaees.  ajid  out  of  the   whole,  first,   debts 
owing    to    Her   Majesty,   then  judgments^    statutes  and 
re-ogni/anees,    th.-n    bonds,    then    debis,    without    spe- 


eia 


lit 


.th  f! 


iere   jiiid    iii 


'^ngland,  arc  to 


ati-fied 


;iiid  th.'  ;eliuiiii^trator  in  tlu'   |.laiitatioi;s  will  not  be  al 
lowed  the    j.ayiiieiit  of  au'    debts,    wjtl 


11 


ier< 


lout    s|)eciality,   if 
be  debts  of  a  superior   nature   uiisitislied    in   1 


ami 


for 


»'\('r\    administrator   is  boiuid  to  tal^ 


^.ng- 
«'  care   to 


apply  the  int. 'State's  assets  to  disel 


ordt'r 


the  I 


large  his  debts,  in  the 


debt 


iw  directs,  ami  it    matter-   not    wlu'ther   tl 


le 


s    \\t 


ri'  contracted  in  Kngland  or  the  plantations.     If 


there  be  debts  of  e(|iial  natu 


tatioii-i.    th 


•e  ill  Kngland  and  the  plan- 


linuiistrator     ma\     di-char 


wliic 


ilea-es. 


tun 


beliire    he  be  sued  for  aii\   other  of  the  Id 


ke    iia- 


In-    mile 


-ollle   ( 


iitiicult\   oil  admiiiistiaton 


'"It  It  h  iH,   iMor.'   tlieiv  than  ill  Kngland,    and  attempts 
''•''''    '"•""    '"•"''■   l'.\-  A.'ts  of  A-s.-iubh,  i„  M.me  of  the 

•••r,  in    i'emisx  h  a- 


||iautafl..iH.    |.arti(  iilarly,  as  I  reiiieml 

"'■'    •"  ■'PI""P'    >•'•  'Ik-  'dre.'ts  in  tiie  plaiitatioiH,  of  p.-r- 

s«»us    dying   th.'ie,    to   thedi.sehaririii-   d..bfs    eontia.  ted 


THE  king's   prerogative  ABROAD.  65 

there  ;  but  those  Acts  have  been  repealed  here,  as  being 
prejudicial  to  this  kingdom.  I  um  also  of  opinion,  that 
when  the  letter,  of  adinini.stration  arrive  at  the  planta- 
tions, under  the  .seal  of  the  Prerogative  Court  of  Canter- 
bury, they  are  to  be  allowed  there,  and  the  authority  of 
he  administration  granted  in  the  plantations,  from  that 
tiini     eases.  u        xt 

March,  1707.  .^''"'"'^^'• 

II.  The  King's  Ciril  authority  abroad,  may  be  subdi- 
vided into  five  several  divisions  :  y//,,,.  of  "the  King's 
rights  of  ]>ropertjk-.  ^ 

riM.y.ra  naitu v.)  ,  u;.,,  ;„  ,  ,,,,,  ;,.  ,^^. 

To   the    >Lmpus  of  (Winarthen,  tbe  President    of  the 
Couned.  Earl  of  Danby. 
My  Lord  ; 

I  think  it  had  b.en  U-t,.,.  if  an  .Hp.isition  had  been 
taken  and  the  lorfeitmv..ommi,ted  bv  ,h..  Lord  Haiti- 
incre,  had  been  therein  tbund.  before  anv  g.ant  be  ma.k. 

to^nevv  Wernor;  yet  si„..e  .here  is  .one,  and  i,  being 

.K-.Ht  the  Charter  of  Lord  n.hi,,,.,,.,,  „,.,   p'      ,        '^     .       "  ^"7".'' 
order  to  varnt,.  ,h,.  .amc   ■      (J,,  .h..     .1,        \  ^^^••'O'n'i.l,   m 

Baltimore  wa«  heard,  l,v  counnd,  ngainsMh,.    K,,,/.       ,    •  '        ''     . 

Oov..n,or    r.r    Maryland.       (),.    ,|„     ,.,,).    ,        -  ^'t'f-"— "t  „,   „ 

-ued  an  ordor  of  Councl,   ti.   ,       o    ;    ,    L       "'" ^  V'   "'"" 

I  .  .  'Iran    iiy  ;,  ('()iiiiiiiM«ioii    v h  r'  ■  lir.,) 

l«nd,  !,<•   Iraiiimntt.M    to   Lord   Hvi1m..v     .1,  .   s!        .  " 

10 


I 


¥t  1 


It  '^ 


6e 


OPINIONS  OF  EMINENT  LAWYERS. 


in  a  case  of  necessity,  I  think  the  King  iiiav,  by  his  com- 
mission, constitute  a  Govei-nor,  whose  autliority  will  be 
legal,  thoufrh  he  must  bo  responsible  to  Lord  Baltimo.e 
for  the  protits.  If  an  agreement  can  be  made  with  Lord 
Baltimore,  it  will  be  .-onvenient  and  easy  for  the  Gov- 
ernor that  the  King  shall  api)oint.  An  i"i  luisition  may 
at  any  time  be  taken,  if  t)ie  .-rfiiture  br  not  pardoned, 
of  which  tht^re  is  some  doubl.  j.  Holt. 

Sergeant's  L\n,  June  3,  1G90. 

(2.)  T/ie  opinion  of  ihfi  A  ttonu-,j  and  SoUdior-Gen- 
eral' Xorthoj  nud  Hat-rovrt.  thut  th,r   Queen,  heivine/  a. 
right  to  f/onrn  all  h,i- people  nw;/  rexNin,-  n  Gorernment 
uiuler  a  Royal  Cluiii,r  t/nit  h,,d Utn  ahu-atd. 
May  it  please  your  Miijcsfv  ; 

In  hunibiecbi'diciicc  to  yoin-  .Majesty's  order  in  Coun- 
cil, we  havecoiisidorfd  nftho  annexed  extract  of  a  rep- 
,    resentati(m    [nnn    the    L.,nls   Commissioners  of   Trade 
ami  Plantations,  upon  letters  received  from  Colonel  Dud- 
ley, your  Ma.jestx  s  Covernor  of  Massachusetts  Jjay  and 
New    Hampshire,   eomplainiiit:  -f  -reat    inconveniences 
hapi)eiiing  to  liim  in  that  -uvernnieiit,  from  di.sorders  in 
llluMle  Island.  Cor  uunt   of  -ood  liovernment  there;  and 
also,    upon    letters    received    irom   the    f,ord    Cornburv, 
your  Maiest^  s   Covernor  of    New  York,  complaining  of 
like  inconvein'ences  Irom  di>(,rders  in  the  Colon\(ir  Con- 
necticut, that  Mud    IJhode  Isla.nd  being  Charter' Covern- 
•   ments;  and  also,  of  th.'  report  of  tlu'  Attornev  and  S.,Iiei- 
tor-General  of  tin-   late  K,n^-  Willi,,,,,  m.i.I  Chiren  Marv, 
ma.le  in    .Inl\.   IC'.U:  ;,„d    ue  ,|o  co,„  ni-   with   them    in 

their  opini.Hi^   iheivin  m.  nti..ncd.  Ih.it  u| an  extrao,-- 

dimirx  e\iircii,\.    happening  ihroui:!,  ihr  delaidt  or  neg- 
lectof  a  proprietor,  or  of  iho.e  appointed  I.N  hiin,  or  then- 


THE  king's  PREII0GAT1V=,,BB0AD.  fff 

inal.iiity  t„  profoct  or  .lofend  th.  Province  under  their 
govenunent,  ,a„l  ,l,e  i„l,„,„„„,„  „„,,„,.  ,„  n^,,;,, ^J 
™-  "..n..non(  d.nger.  vour  M.ie.iv  „,„,•  c„,.ti,„te  „  g" 
ernoro,  .„.,,  p„,„;,„,  ,„  Clonv,  ,s  well  for  the  civil 
"^  .."l.l.M,   ,„,rt  of  sovennnent.  „,,d  for  ,hc  protection 
,""  I--;-'i™  .iHT-of.  end  of  ,„nr  M„ie»tv'  ,„b     to 

Lore,  w„h  , In.  „ddi,i,„ Iv.   ,h„,  „,,;,„„  ,,,i,^lt 

-nrneni   .,ch  (l„ve™„r  is  n,„  to  .-Iter  „nv  of  the  rXa 

t.l,  ,..hed  pu,s„„nl  ,„  ,„c  c,,„,,..,„  ^  J^- 

"""  ''""f"-:"'-"  "f  <!"«-  ™l...m,  nre  nK,,rporated     on 
.er,,s„,  o,  „,,.,h  tl,„r,er.,  we  ,lo  no.  , ny  el',  ™ 

"""  ;:'"  "•■""'"  .' ■  M.U....V  (Who  1„,  „  riRl  t  tolv 

Ma.le.ty  „  l,el,„|,;  f,.  ,h,,,c  ,„|,.„i,,,  „,  „„  ,;„,,.^  >"'"' 

Enn-.  NoRTiJEv. 

''^IM.    Il.VRCOURT. 

To  the   Kiirht    Honon.l.Io   I^nlHMt    V.A     r  ,.   <•     , 

Karl  M..rtMii..r,    L,„-,l   ]i,..,,   ■■' ..  ^,         "  "'"' 

t,,i„.  ""   ^-""■'^'"•^'r  "I  Great   Bri- 

^hyy  it  picaso  your  Lor,lsIii,,s  ; 
In  ohodii'iico    to   \<<iip   r  ,> .  i  i  • 
lonu.KvMr    I,  ,,,  v        n ^';'"'"""'■■l«  -V'mfied 

.rwi„;L'  '  , „";;•:•■";"• 

;::  ,::;:::';-"-^ ^  ....,.o.„:',:,:;r : 

-".;:-'■::;;■ 'zr:^::;:::;:" ^ 

govmiinent  t..  hi,,.   I.v  Ki,,-  (|,,,i      ,,     T.  '''* 

■        ^'"^    ^ll.lllcs  tl„.  N',',.il(l,    with 


68 


OPINIONS  OF  EMINENT  LAWYERS. 


otlier  deeds  relating  to  Mr.  Penns  title  thereto,  and  to 
the  govtrnment  of  the  tract  of  land  on  Delaware  River 
and  Bay,  now  called  the  town  or  colony  of  Newcastle, 
alias   Delaware  ;  and   he  has  mjide  out  to  me  hie  title 
thereto  ;  and,  according  to  your  Lordships'  commands,  I 
have  prepared  a  draft  oi"  a  surrender  of  those  powers 
from  Mr.  Ponn  and  others,  in  whom  the  legal  estate  is, 
under  hiui,  to  Her  Majesty,  reserving  to  Mr.  Penn  his 
right  to  the  soil  of  those  colonies.     In  the.  letters  patent 
of  King  Charles   the  Second,  there  are  granted  to  Mr. 
Penn  all  mines  of  gold  and  silver  in  Penn-sylvaiiia,  which, 
he  says,  he  cannot  'surrender  to  the  Crown,  having  made 
several  grants  thereof  to  several  pe.^ple,  which  are  not 
in  his  p(,iver;  and  therefore  the  surrender  of  them  is  not 
In  the  draft  prepared,  although,  if  it  be  insisted  on,  he 
may  surrender  and  as.^'ign  what  is  not  grante<l. 

There    is,  likewise,  an   insirument    prepared    for  Her 
Majesty's  accepting  the  sai<}   surrender;  and  in  it  Mr. 
Penn  is  an  hund.ie  suitor  U,  her  Majesty,  th«l  she  would 
he  pleased  thcivhy  to  declare  that  she  will  take  the  peo- 
ple of  his  jHTsuasion,  as  well  as  the  other  inhabitarN  of 
those   clonics,  in  H,.,-   Majesty's  i-rotecticm.      I  do  not 
i)l)servetlial  there  is  any  pr'.vision  made  for  the  support 
of  tlie   governiHcnt    there,    l.y  miy  act    of  As.semWy   or 
(.the    vise,    without    wliiel,    the    government   will    "he  a 
charge  to  Her  Majesty;    hut  the  Council  of  Trade  and 
nMiitatioiis.  in   their  report,  have  represented  that  Mr. 
Penn  alRrms,  he  does  uot  douht  hut  the  Asseml)ly   will 
readily  make   provision  for  the  same,  and   h,.   acrpiaints 
me  that  the  fines  and  forfeitures  there,  whicli  have  been 
and  may  be  applied  hereto,  are  considerable. 

febriiary  2».  17  |  |-]2. 


I 

i 

THE  KiXG's  PREROGATIVE  ABROAD.  69 

(40  m  opL-on  of  the  Attorney  a,ul  SoUcitor-Gene- 
ral  Ryder.,  ami  Murray,  an  tU  Kiny\s prerogative  to  re- 
cnvethe  vernation  of  th.  Chur  .  of  Georgia,  a.d  to 
estahlish  a  Moyal  Government. 

To  the  Right  Honorable,  the  Lord«  of  the  Committee  of 
Council  for  plantation  affairs. 

May  it  please  your  Lordships  • 
In  obedience  to  your  Lordship.;'  order   of  the  19th 
of  December  last,   setting  forth  that  His  Majestv  was 
pleased,  by  h.,  order  in  Council   of  the   13th  of  May 
last,  to  refer  unto  your  Lonlships  the  memorial  „■■  the 
Trustee,   for   establishing   the   colony   „f    Georgia     in 
Amer:ea,  setting  forth  that  His  Maies'ty  was  plcoscl'.  by 
h.,  royal  Charter,  dated  the  »th  of  .June,  1782  to  ur.ke 
erect  and  „,«,e  the  Co.ony  of  Georgia,  and  ',o  ....nsti-' 
tute  the  menional,,,.  ,o  w  „„,  ,^,        ,.,;„ 

rate,  for  establishing  the  said  C „y.  „„a  ,„  ,„,„,  ,  J„", 

l»wer  to  elect  their  own  successors  li.rever.  and  also,  t 
et  „,  them  and  tueir  successors,  forever,  seven  unii- 
v.ded  parts  of  „,1   ,he  l„„ds  therein   ,,arti,.ularlv   d,  . 
cnW,  a.  trustees  for  granting  the  s,.me  to  .such     f      , 
M^ies  y's  n„  ,gen,  subiccts,  and  persecuted  li.reign  P, 
..ants,  as  should  desire  to  inhabit  and  „side  „,  re.  a    I 
he   ,K,wers  ol  govenunent  over  the  sai.l   .'olonv  were 
thereby    ve.te.l  in    then,    for  the  tern,  of  tweutv-o  , 

the  scve,,.l  steps  they  have  taken  f, ,  ,i,„c  to  •; 7,, 

1-  |H-pl,„g    settling  and  establishing  „,„  ,„;,,  ,,,,,„, 
"Kcherwdh  the   present  state  and  c ,itu,n   there,    ' 

'""<l-'.-.lK.«,idter,nof,oven„„en,win,.vni,v    ,; 
..s.n  -  .  .0   9th  of  .,„„o   ,„3.  .though    tb      ,,„Lo 
gmufng  land,  ,«  v«t«i  in  them  forever,)  thev  I,,., v 


70 


OPINIONS  OF  EMINENT  '.AWVERS. 


i      l,- 


praj  that   proper  ineiui.s  may  be  .soon  provided  Jor  Dut- 
ting  the  govcM-nmcnt  of  the  Colony  oil  a  more  sure  ffmu- 
tlation  tlian  it  is  at  pre.-eut,  <hnn,-h  the  uncortaintv  of 
the   memorialists    hein-    enabled   to  support   it.   lest  80 
groat  a  misfortune  should    happen  as  th'   iinmedi;  ^o  de- 
sertion and  loss  of  this  imjiortant  Colony  ;   and  that  your 
Lordships  had,  that  day,  proceeded  to  take  the  said"  me- 
morial int..  yom-  consideration,  and  bein..;  iaform-.v]  that 
a  committee  of  the  said  trust<,.es  was  attending,  and  had 
8ome  proposals  to  offer  to  yonr  Lordship  in  addition  to 
the  foregoing  memorial,  they  were  called  in,  and  the  fol- 
lowing proposal  was  delivered  hy  them  to  yom-  Lord- 
ships, viz:    "We,  whose  names  are  hereunder  ^^rittvM 
being  a  Committee  appointed  by  the  Ccnnmcm  Counci'  of 
the   trustees,   for  establishing  tJie  Colonv  of  G(>orgia    in 
America,   and  fully  authorized  b\  them,  do  hereby  si- 
nify,  that  we  are  ready  and  willing  to  make  an  absolate 
surrender  of  a  11   the  powers,  rights  and  trusts  vested  in 
the  sai.l  trustees  by  His  Majesty's  Charter,  bearing  date 
theOthday  of  June  17:52.  with-.nt  anv  ..onditions  or  lim- 
itations :  humbly  n-commending  the  rights  and  privileges 
*•'  >'"'   inhabitants  of  the  .said  Colony  to  Jj is  Majesty's 
most  'rracious  protection. 

•'  Deet  -iiber    \\)     l?,")!  c„     .^ 

')    '^•'Jl-  '^11  M'TSBl'KV. 

ifoHEK  I    TmcEV, 

.Ion.\  Frederkk, 
Sami,.  Llovd, 
'■''^"'ard  jioopfr." 
Uhich   being   taken  into  con  id..,;,!!,   •,.    x,.nr   Lr.rdships 
were  thereby  pleased   to  refer  the  said  proposal  to  us  to 
'•".is.der  therc.f  and    report  tu  your  Lonlships,  in    what 
manner  the  s.me  may  1^  mo.st  effectua!i\  carrie<l   into 
execution. 


THE  king's  prerogative  ABROAD.  7  J 

We  have  considered  the  said  nrnn,.  .1        i 
the  .M  Char.0,.  of  the  0th  of    „,:.;'';:;;'  Jr"-' 

I'lw  or  .ovenunent  of  South  Croh-,,..  " 

That  the  menioriuh'sts  were  ther.W.v  ,..    i 

..(■  the  l„,Kl,  ,1  ,,0  were  Z'„7^u     ,,         :'"-™-"''>'"h>' 
held  of  tho  Or.,,,-,,       ,1  ''""  """■"■  "'  I* 

power         ,h  V    ,  '■■    r'"*"  "'""'"  ■'""•"•"'■''■  -'«> 

"»•    >«■.■".  ol    t,ve„tv.o„e   ve,  ■'  ,  ,  .  '   .■■",'''    """    '"'' 

1-ve   ,^,ver  .,f  „,,;ki„,-  :,,"         T'''''"''"'^  *"''■' 

i^ind,   ,v„.  ve»l«l    i„    ,1,         -     '"•  '"■"""■-'■iK'"h  "f  eho 
'•■  "»ko  ,ueh  .,nen,U.r  a,„l  <^   ,     •  '"'  ''""'■'' 

TiK.  proper  „K.,h„.i„f,;;',;;,'';"i"~'"- 

-■■-■■ I,;':;,,;'::;:; ;::;: -■■'" ■■'■•• 


if 


f 


72 


OPINIONS  OF  EMINENT  LAWYERS. 


•' 

1 

i 

• 
■ 

their  lands  and  territories  to  His  Majesty,  as  well  the 
one-eighth  derived  from  Lord  Carteret's  grant,  as  the 
seven-eighths  included  in  His  Majesty's  said  Charter,  but 
subject  to  such  estates  anti  interests  as  the  inhabitants 
there  have  in  ony  of  the  lands,  by  virtue  of  grants  from 
the  corporation. 

When  such  gi'ant  and  surrender  shall  be  made,  we 
hninbly  conceive  His  Majesty  will  have  both  the  gov- 
ernment of  the  Colony  in  his  own  hands,  and  the  lands 
and  territories  thereto  belonging,  subject  to  the  grants 
of  any  part  thereof  noiv  subsisting  ;  and  as  to  the  said 
one-eighth,  subject;  to  the  quit  rents  reserved  in  the  Lord 
Carteret's  grant,  and  may  put  the  government  thereof 
on  .such  a  foot  as  His  Majesty  shall,  in  his  great  wisdom, 
think  proper.  D.  Ryder. 

February  6,  17-52.  AV.  Murray. 

(•J.)  T/ie  (/phiio/i  of  the  Attovuey-Geiieral  Northey,  an 
the  .surn/ider  of  the  Bahartui  Charter. 

Whitehall,  Dec.  10,  1717. 

Sir  :  The  Lords  Commissioners  for  Trade  and  Planta- 
tions command  me  to  remind  you  of  my  letter  of  the 
21st  of  the  last  month,  which  was  to  acquaint  you,  that 
there  being  six  proprietors  of  the  Bahama  islands, 
whereof  two  are  minors,  the  other  four  have  executed  a 
deed  of  surrender  of  their  right  of  government  to  His 
Majesty,  and  to  desire  your  immediate  opinion,  whether 
a  surrender  executed  by  four  out  of  six,  as  aforesaid,  be 
valid  and  effectual.  Wm.  Popple. 

[Tile  Attorney-General's  report  upon  the  surrender  of 

the  Proprietors.] 

1  am  opinion,  that  a  surrender  by  four  where  six  are 
seized,  can  only  convey  and   exHnguish  thereby,  four 


I 


TH»  turn's  PMsoeiTim  abhoao.  73 

part,  in  ,ix  of  wLat  the  parties  enjoyed.    However,  Hi, 
Ma,„tr  bemg  ent.tled  under  four,  to  four  part,  o;  the 
govenunent,  wh.ch  i.  entire,  he  may  execute  the  whole 
And  I  do  not  l<„„w,  that  the  other  two  can  be  cona  t 

ner«  with  hia  Majesty  in  ^ovornim,  ■  for  „l     1 

•.11.1  tl„t  n  u  ouicrning  ,  lor  which  reason, 

and  that  there  nught  not  be  an  extinguishment,  by  sur 

Uown  of  the  four  parts  might  V  more  proper 
December  10,  1717.  K„w.  Nobthev. 

S.»  :  The  L„rd«  Commissioners  for  Trade  and  Planta- 
t.ons  having,  by  your  letter  of  the  13,h  February  laT, 
required  our  opinion  on  the  petition  of  the  Earl  of  Suth- 
erland   praying  for  a   Charter   of  certain  lands   Iving 
upon  Delaware  Bay.  in  America,  couimonlv  called    he 
Three  Lower  Counties.  .Iiether  it  be  in  the  power  of 
the  Crown  ,0  dispo.se  of  those  lands  pcitioned  for  ■  wliich 
petition  had   been  referred  to  their  Lord.sliip,  by    it 
M^sty;  and  His  Majesty  having  been  also  pleai-d  to 
refer  the  said  petition  U,  us.  we  liave  made  o„r  i^'  .t 

oH  I  "^''''■-  ""•'  »"'-".  '■"-  sent  via 
«.».  of  the  said  report,  which  may  serve  tor  an  a'nswer 

M    r'Tr""^"  '"  "»  ''>"  "«"■  Lordships. 
October  28.  1717.  £„„..  ^J^^^^^ 

W.  Thompsoiv. 
To  the  King's  ino,st  excellent  Majesty. 
May  it  please  your  Majesty  • 

signitiedf'  "^'":r   '"  "'"'  "•"■'■'■<^'"  ™™-"*. 
-.g...(ied   to  your    Majesty's    Attorney-General,    by  the 


i-.. 

¥ 


74 


oriNIONS  or  KMINENT  T, WV^'f.RS. 


I     i 


Lord  VisTOunt  Stanhope,  when  Seeretarv  of  State,  on 
th5  memorial  of  the  Rioht   Honorahle  John.    Earl  of 
Sutherland,  and  your  Majesty  havinj?  been  ])1  eased  also 
to  signify  your  commands  hy  Mr.  Meth'ien,  when  Secre- 
tary of  State,  to  refer  the  said  memorial  to  your  Majes- 
ty's Solicitor-Cfeneral,  we  have  jointly  considered  of  the 
said   memorial,  whereby    tlie    said   Earl    of  Sutherland 
represents  to  your  Maj\>st\' :  that  there  are  considerable 
arrears  due  to  him,  since  the  revolution,  amounting  to 
above  £20,(t(»()  ;  that   he  has  always   testified  his  great 
zeal  and  activity  for  the  Protestanr  succession,  both  be- 
fore and   since  your    Majesty's  hai)py  accession  to  the 
throne,  and  given   singidar  proofs  of    his  fidelity    and 
affection  to  yom-  Majesty,  by  his  services  in  North  Bri- 
tain during  the  i-ebellion  there  ;  in  consideration  whereof 
your  Majesty  was  pleased  to  express  your  liivorable  in- 
tenti(ms  of  gratifying  him  upon  any  occasion  :  where- 
fore, he    most   humbly  pra\s  your  Majesty  will  be  gra- 
ciously pleased  to  grant  him  a  Charter  of  certain  lands 
lying  u])on  Delaware  BaA-.  in  America,  conunonly  called 
the  Three  Lower  Counties,  which  he  represents  he  is 
ready  to  prove  do  belong  to  the  Crown.     And  we  have 
given   notice  thereof  to  the  persons  concerned  for  Wil- 
liam Penn,  Esq.,  and  several  mortgagees  and  purchasers 
under  him  ;   and  also  to  the  Lord  Baltimore,  who  sever- 
ally claim  title  to  the  said  lower  Cinnities,  being  called 
Newcastle,  Kent  and  Sussex.     And  Ave  have  heard  them 
and  their  agents,   thereupon,  and  we  do  most  humbly 
certify  your  Majesty,  that  the  said  William  Peim  is  en- 
titled, under  the  griMit  of  King  Charles  the  Second,  to 
the  plantati(m  of  Peiuisyhania  :  but  that  these  counties 
are  not  included  in  such  grant,  and  his  title  to  Pennsyl- 
vania is  not  now  contested. 


•I'HE  king's  PREROGATIVK   VBRuaI). 


75 


And  a.-   lo  youi-  Majesty  .s  title-,   whioli    tlie    Earl    of 
Nutherlaiid  has  un.lortakfn    to   make   out,    to   the  said 
Throe   Lower  Co...,.,es,   he  lias  insisted  that  the  same 
were  ffamed  by  con<,,K-st,  hy  the  suhj.cts  of  your  Majes- 
ty s  prodoeessors,  or  <>,nmted  to  your  Majestv's  predeces- 
sors   by  the  po.ss..ssors  thereoi;  and   that    thereby  your 
Majesty's  predecessors  becau.e  entitled  t<.  the  same     for 
that  a  subject  of  the  Cruu.,  cul.l   not  make  fovei-„'  ac- 
MU'sitmns  by  conquest^  but  ti.r  the  benelit  of  che  Crown  • 
-"cl  that  the  length  of    possession    will    be   no   bar  to 
lie  Crown  :   that  f  ^   -everal  years  past  Mr.  Pena  hath 
had  the  possession  ol'  the  sai<I   l.nver  Counties,  under  a 
pretense  ol  a  grant  thereof  to  hin,  u.ade  in  the  year 
m      by  the  late  k.ng  James,  wh.n  J)ukc  of  York,  who 
hen  imd  the  possession  oi'  X.w  ^  ork  and  the  said  Three 
Lowe.  Count.es;   but  had  no  rioht  to  the  s^iu  Lower 
Counties,  and  therefore  could  not  transfer  anv  right  in 

he  san.   to  tlu.  said  Mr.  Penn,  which  appear;;  f;!;  that 
he  said  late   Kmg,  afterwanls,  when  Duke  of  YorK  in 
he  year   U>83,  obtained  a  warrant  from  the  then  King 
Charles    the  Second,  to  pass  a  patent  wU.eby    the    safi 
Three  Lower  Counties  should  have  I.en  granted  to  the 
s.i  d  then  DuKe  of    Vork,  and  a  copy  of  the  bill  to  pass 
mt«  a  grant  m  April   108:^  to   die  said  James  Dul^  of 
|<>rk   oi  the  saul   Three  Lower  Counties,  has  been  pro- 
duced by  the  said  Karl  of  Sutherland  ;  and  it  is  al^ 
l^.une  was  n™.pas.ed  into  a  grant;  and  that  If  the 
-mchadpasseomtoa  grant,    it    would   m 

M..lnn.s  title  to  the  said  Three  Lower  Counties  to  be 
goc^,  tie  title  of  the  said  >lr.I>enn  under  the  Duke  of 
i      k       en.g   p...    ,,,,    to  ,be  title  of  the  said  Duke  of 
W      ,,.,,,    the   same  did  remnin  in   ,be  .said  Duke 
oi  lurk,   and    is.   eonsenuently,   now   in  your  M.ye«ty 


"^1 


Td 


OPINIONS  OP  EMINENT  LAWVfiRS. 


ii       •    J 


f-. 


And  that  your  Majesty's  title  further  appears;  for  that 
after,   in  May  1G83,  when  the  rhen  Lord  Baltimore,  by 
petition,  opposed  the  passing  the  said   bill   under'  the 
great  seal,  Mr.  Penn  then  appeared  against  the  said  Lord 
Balt.nioiv.  as  ager.t  for  the  Crown,  and  not  on  behalf  of 
hunself;    an,l   Mr.  Penn,  under  hi.s  hand,  has  declared 
that  y.)ur  Majesty's  royal  approbation  and  allowance  of 
the   Deputy-Governor  of  Pennsylvania,  and  the  Three 
Lower   C,)unties   on    Delaware   River,  named  by  him 
shall  not  he  construe,!  to  diminish  or  set  aside  the  right 
claimed  by  the  Cro^vn,  to  th,.  said  Three  Lower  Coun- 
ties. 

Besides,   the  said  Earl  of  Sutherland  insists,  that  in 
the   giant  of   tiie  sai.l    Duke  of  York,  in    1682,  to  Mr 
Penn,  of  the   .said  Three  Lower  Counties,  there  is  a  re^ 
servati.m  of  an  account  to  l)e  ma<le  of  one  moiety  of  th« 
prolit,.  of  the  lands  thereby  granted,  touching  which  no 
a.oount  has  yet   been  reudeivd  hv  Mr.  Penn;  antt  tVmt 
theivlore,  il"  the  said  grant,  in  1(182,  w^re  effe.'tnal,  th« 
sa.d  Mr.  I'enn   is  yet   ac.-ouutable  to  your  Majesty    fi*!- 
the   Miuioty  ot   ail   (he  profits  of  the  lan.ls  ho' gra„te«l 
*'•<>"!  tl„.  year    K'.SL',  accrdlng  to  the  said  re«o,^•ati<>,  ' 
and  tliM(,  ,f  the  said  Karl  of  Sutherland  cannot,  by  vow 
Ma.iesivN   li.vor.   be  entitle.l  to  the  ,.«id  Three  I  ower 
Couiiti,.s,  Uv   humbly  prays  }„■  may  have   the  b(^,.fit  of 
the  said  accoimt. 

T-i  n.H«vr  (..  wl.i,  I,,  on  fl„-  Ixdriir  ..f  Mr.  P.-nnV  mort. 
gag.Ts  and  ,,t|„.r  puirhasors  ,„Hl,.r  hii.,,  it  Imth  Ivon 
alh'g.-d,  f|,a(  (h..  Ia(..  King  .lames  (h,-  Second,  when 
Duke  u(  York,  was  .M.-izcd  iu  iW  of  the  .s„id  Thr.M.  L<,wor 
Counties:  :.,„i  as  on.-  argument  t<.  prove  such  seizin, 
they  have  produced  I..»J,m-s  juJent.  datcM  the  L'lUh  day  of 
.June,  2(i  Car.  II  .  whereby   his  .said  late  Mnj<.stv    King 


TH«  KINO'C  WIBIIOCATIVI  JimoiB.  77 

rMkfVv"  ^^^.<^"'*^   *»  the  .aid  Jame,,  late 

m.,„  land  of  New  England,  beginning  at  a  eeVtoin  place 
called  or  known  by  the  narae  of  St.  C„,i.,  next  ali" 
ng  to  New  Scotland,  in  America,  and  fron,  thence  Z 
tending  along  the  ,e,<«„t  „„u.  ,  certain  place  called 
Pema<„,,„„e  „r  Pemaqnid,  and  »o  „p  the  river  thereof, 

ward,  and  extending  from  the  river  of  Kinebequim  and 
"o  upward,  by  ,h«  d^,„t  oo„,«,  to  the  riv^r  Zna,!. 

ut  r  f  H  '  -T""^  '"""•'  ''  "^^  "f  Matewaicfc,  or 
LongI„a„d^„t„a,e  a™l  being  toward,  the  w„.  of  Cape 
Codd  and  the  ^arro  Hig^^,  ,y,„^^  J 

and,  ,K.twec„  ,1.  ,„o  riw™  the,,  call'l  o^knol  b" 
tte  .eve,«  „„,„„  of  Co»,,ectic„t  and  Hudson  I  v,^ 
^g^ther  „,,„  With  the  ™id  river  ,^»,led  H„d,o„V  «  v    ' 

.liver  to  the  ea,t  .,de  „f  D,|„«.„,  ,^      ,„,, 
«-e.ev«ral  i.,.„d.  calW  or  known  bv   the  n Ic 

^l::""l  ";;"  f"-'^''-  "«--e  N.nt„ko„.  „ 
(.ether  «„l,  all  the  land.,  i.l.nd,,  ,oil,,  river,    harl.„„ 

:;"""■  'T'""'  7"™«li'-»  and  h..r,.di.,„„e„„  t,,  „„: 

".•i-r.a.n,„g.   „i,h   their  and  every  of  „,..i/.l 

-.    a".lallhi,«.:dl.,eM,ies,y..e,„„..'   ;, 

•--■"•"I.Vnem,.,v„„,a^.,clain,andde„,,,,: 
<^  '     ...  ..the  .a,d  land,  and  pre„,i„.,,  „,  „„,       ,  ,„.   ,„.. 

»1  thereo,.  „„d  the  reversion  and  .^ver-ion.  r,.,„„i,  der 

::''■;■ ' "    •7"-"-  -■'»'   .earlv  a , 

rent-,  n.ve„„e»  ,„kI  poOu  .rfthe  pr,.mi«„,  and  ,.,  ..very 


'If 
I! 


■-■■•-  r-| 
-  -    ;-  » 

;  I 


78 


OPINIONS  OP  EMINENT  LAWYERS. 


•    ♦ 


part  and  parcel  thereof;  at  and  under  the  yearly  r.ntof 
forty  beaver  skins,  when  they  shall  be  lawfully  de- 
manded, or  within  ninety  days  after  such  .icniand,  made 
with  powers  of  government ;  within  the  descriptions  of 
which  grant  it  hath  been  agieed  b\  both  parties,  that  the 
said  Three  Lower  Counties  a-e  not  contained. 

But,  on  the  behalf  of  Mr.  Penn,  it  hath  been  insisted, 
that  by  the  general  words,  "  together  with  all  the  land-s, 
islands,  soils,  rivers,  harbors,  &c.,  and  all  other  royalties,' 
profits,  commodities  and  hereditaments  to  the  said  sev- 
eral  islands,  lands  and  premises,  belonging  and  apper- 
taining, with  their  and  every  of  their  appurtenances," 
the  said  Three  L(jwer  Counties  did  pass  as  belonging  to 
the  premises  expressly  gianted  by  the  said  letters  pa- 
tent ;  for  that  the  Three  Lower  Counties  were  enjoved 
by  the  said  late  Duke  of  York,  together  with  New  York, 
which  was  granted  untu  the  said  late  Duke  of  York,  un^ 
til  hi>  granted    the  same  to  the  said  William   Penn  in 
1()82,  by  the  grants  hereinafter  mentioned,  which  seems 
dillicuh  'o  US  to  be  maintained,  since  the  abutUl  in  the 
said   letters  patent,  exclude  the  Three  Lower  (bounties  ; 
')ut    tliey   presume    tlie  said    late  Duke  .)f  York   might 
have  some  other  grants  thereof,  which  Mr.  1\  iiii  might 
give  an   a(  .ouut   of    but  cannot,  being  under  a  lunacy. 
And  we  do  further  humbly  certity  your  Majesty,   that 
by  imienture  dated  the  21th  day  of  August,  l(i,S2,  made 
between  the  said  la'.'  Duk..  of  V,,ik  ..f  the  one  part,  and 
the  said    William    I'mu  .,|    iIh-oII,,.,-  |,;,,t,  ||,e  sai(i   late 
Duke  of  York,  for  the  cousidcratious  liirnin  niculioned, 
<iid  bargain,  sell,  cufeolf  and  conlirm  to  the  .said  Williaui 
1%'Mu    aud   his    heirs,   all    the    town    (>f    N,.\vcastle,  ofh- 
erwiM"  calle.l  Delawan-,  and  ail  tha     ira«-f  of  land   Iving 
within  the  compa.ss  or  circle   of  twt-lve  miles  about   the 


THE  king's   PREROOiTlTEiBHOAn,  Jf 

-ame,  sit.at,,  h,„g  „d  l^ji^g  „p,„  „,e  river  Dela,vare 
and  all  „la.,d,  ,„  the  «aid  river  Delaware;  and  the' 
»a,d  nver  and  ,„il  (hereof,  King  north  of  the  southern. 
.no,t  par.  of  the  ,„„,  oirele  of  twelve  ,„ile,,  ahoot  "e 
a,d  town  together  with  all  renu,,  service,  royalt  e, 
aneh,,es  d„t,es,  j„risdicti„ns,  libertie.  and  privilegl' 
'"77  "''""«'"''■  ""-'  ""  "-  --'e,  r,«ht,'title,  '  ,- 

"1    he  .„d  late  I),.ke.  of,  in  or  ,„  ,|,e  s„„,e,   ,r  to  any 
part  or  parcel  thereof,  „t  „„d  „„der  the  ve  rlv  re„    ,  f 
hve  shdhng,,  with  .  covenant  «,r  further  aJsn^rce 
and  the  sa,d  h„e  Dnke  did  therehv  oon,ti,„,e  ZZj 

point     Jo  Ml     Moll     'in.l      l.'„l.    ■  .  I 

hen,   hi»  ,„  /•'PlTian,  Harmon,  or  either  of 

them,  hi»  ,  ttoniey,  with  lull  ,„„.„  ,;,,  j,,^ 

".'"U.    and   stead,    ,o   deliver  sei.in   of   the    or,  ,  ises 

^TCr  1'!'''^'^^ •' ™.nre,  to '„,:':,: 

or,r- ''";''""'';■'"■       A""  "- "".'Hate  UiiKe 
ol      ork,   l,v    „,io  her  iiideiiliir,.    hearing  date   the  said 

Dn     'tf'^S'o  T  " "'"■' "--"- 

Venn  of  th  .„,;,""; '"",': '  ""■ ""''  "■ ■" 

-- "'..ii..;::.   .Ti  :,,7::r ;■""-"' 

♦he  sni.I    Uil-         i,  ^"- <""•'"    and  c.ndnn  unto 

.»:^:i.:;;Za:;:;v;:i:n::r""":" "■•■ 

IVlaware.  and  extending  south  to  the  Ul,„re  Kill 

I,,,,:,,  ,„„.', "      '"•  ■■"'"""■  '"  '"■  '-longiuK  i.nio  Ihe 

'""  ""'  '""""''  •"■"■'"-'">  .  '"Kether  will,  a ,„  ,„■ 


ust 


ill 


80 


OPINIONS  or  KMINKNT  LAWYERS. 


H    ■■' 


I     r. 


minerals,   and  all  che  estate,  interest,  royalties,  fran- 
chises, powers,  privileges  and  immunities  whatsoever,  of 
the  said  Duke  of  York  therein,  or  in  or  unto  any  part 
or  parcel  thereof,  at  and  under  the  yearly  rent  of  one 
rose  ;  in  which  said  last-mentioned  indenture  is  contain- 
ed a  covenant,  on  the  part  of  the  said  William  Peun, 
his  heirs  or  assigns,  within  the  spjice  of  one  year  next 
ensuing  the  date  of  the  same   indenture,   to  erect  or 
cause  to  be  erected  and  s-t  up,  one  or  more  public  office 
or  offices  of  registry,  in  or  upon  the  said  last  bargained 
premises,  wherein  truly  and  iaithfuUy  to  account,  set 
down  and  register,  all  and  all  manner  of  rents  and  other 
profits,  which  he  or  they,  or  any  of  them,  shall  by  any 
ways  or  means  make,  raise,  get  or  procure,  of,  in  or  out 
of  the  said  last  bargained  premises,  or  any  part  or  parcel 
thereof;  and  also,  at  the  feast  of  St.  Michael  the  Arch- 
angel, yearly  and  every  year,  shall  well  and  truly  yield, 
pay  and   deliver  unto   the  said  late  Duke  of  York,  his 
heirs  and  assigns,  one  full  moiety  of  all  and  all  manner 
of  rent**,  issues  and  profits,  as  well  extraordinary  as  or- 
dinary, as  shall  be  made  or  raised  u()on  or  by  retison  of  the 
premises,  (,r  any  imrt  thereof;  with  power  to  the  said  laU? 
Duke  (.f  York,  his  heirs  and  assigre^,  in  case  the  same 
shall  !)e  in   arrenr  twenty  days,  to  enter  in  and  upon 
the  same  premises,  or  any  par*  thereof",  and  there  to  dis- 
train, and  the  distresses  to  detain,  unul  payment  of  the 
said  moiety  and  ariears  thereoi;  t<jgytlM;r  with  all  cost*, 
and  damages  iW  the  same.     And  by  the  same  indenture, 
the  said  John  Moll  and  i;phriam   HaiLon,  or  either  ol" 
them,  were  iip|K)inted  in  like  Huinner,  attorney  or  attor- 
nies,  to  deliver  seizin  of  the  last  Uirgained   pretuises  to 
the  said   WiUiam   Peim  and  his  heirs;  l)otli  which  said 
uidenlures  were  ent4jred  in  t^  offioe  of  rec-ords,  for  the 


THE   king's  PBEHOOST.VE  ABRojo.  Ri 

Pmvinoo  Of  N.,.„.  y.H,  „„   „,..  2I»t  No^omhor,  1082 
.  .h.n  >,.h,H.,,„,,™,„s  M,.  «,i,,  Tl„.ee  LowerC^.n.ie, 

T T"  ' '"" ""-■  ■•">■<■"■•>■" t <'™iMt ...t.„,i» ,„ r; 

to  what  ,s  „,nl,„l..,l  i„  ,1k.  I„s,  rooi,.,l  ,.™„t  ^ 

Co„„o,I  „f  N,.„.  y,,,,,  ,|„,..„  „,  j,,,,,^,  ^  '    f  -■' 

--l.or,  M82,  r.,.i,i„„  „,e  ,,m  ,„„  rccla,!  i„,lo    „  ot 

'•".V  .-t.»l.<.,l  ,.r  the.  .„i.l    tt-i „P..„„V  ,.i..|„    „tl„ 

t  ;    """r^"'?  "•  '•""'y """  ''-1-=  the 

0  r„,  NW  "'■'■'■"'•'";'"■'"■  -!--"-ato.  n,.,l  otho,-  nffi. 
n  "  "'  -^•^'"■»»>l<'.  .M.  .t„„o.«  l),.,,lo.  ,,lia«  HI,,,,.,  Kill    „t 

men,,,,,,,.,.,,,  |,r,.v,.,„  .•„,,■  ,1„„|„  ,„,  „,,„|,|,.  , I, 
-;<N  ...,    ,„„.r|,„vi„,  , ,„„,,„„ , ;      v; 

>^ai(l    indt'iiturf's,    w|,i,.|,    ,,,;.|        ,  -^    the 

Oot„hor     I7(.l  '"■''*''■    "'•'^-    ♦'"'    -'tl'    of 

(lelphia.  '  ""'I" 

IVnnsylvnnia,  won>  trnuifo,!  ...  r  "-   "* 

i-irH;«on,e  of  w|.,<-  "" '""'''"  "'"'  "-> 


iH 


»i 


81 


OPINIONS!  OF  EMINENT  LAWVERS 


by  the  said  William  Penn,  and  the  rest  bv  his  agents  or 
commissioners,    and   all  sealed    with    the   seal   of    the 
said  Province  ;  and  that  he  halh   seen  great  improve- 
ments in  building  and  planting,  by  pers(ms  claiming  nn- 
der   such  grants.       That  many  of  the  said  inhabit"ant,s, 
who  were  reputed  to  ha^•e  settled  upon  lands  in  the  said 
Lower  Counties,  by  virtue  ol' grant;--,  or  patents  and  war- 
rants, either  from  the  Swedes  or  Dutch,  when  the  said 
Counties  were-  in  their  hands,  respectively,  or  from  the 
Governor  of  New  York,  under  the  said  late  Duke  ( f  York, 
when   the   same  was  in    his  hands,  did,   upon    making 
their  accounts   up  of  «piit-rents  dvi  from  them  to  the 
said  William  Penn^    for  their  lands,  jiccept  new   patents 
frtmi  the   said   \\'illiani  Penn,  or  his  agents,   and    have 
since  much  increased  tlieir  ii.ipnnunents  thereof,  both 
in  building  and  planting.       That,  he  hath  seen  patents 
or  instruments  for  conveying  lands,  in  the  said  Lower 
Counties,  to  divers  of  the  ancient  inhabitants  thereof,  as 
well  from  tlie  Swedes  oi  Dutch,  as  the  (lovernors  of  New 
York,  under  the  said  late  D.ike,  as  also,   -onnnissions  un- 
der the  hancls  of  si..„e  one  of  the  said  Covernoi-s  of  New 
York,  constituting   magistrates   and  ofhcers  in  the  said 
Lower  Counties.      That,  he  believes,  tliat  the  patents  of 
land   in   the  said   Lower  Counties,  granted  by   the  said 
Governors  of  New  York,  weiv  registered  at  New  York, 
and  that,  if  .search  were  made   in    tlie  Sc<ret-iry  s  (.iHco 
there,  the  same  woui<l  appear  so  to  h(>.  That,  he  believes 
mudi   the   greatest    part    of  tiie  inhabitants   of  the  said 
Lower  Counties   wl..-  have  land  t!  -yv.  hold  the  same  by 
title  under  Mr.  IVnu.  an.l   that   several  who  hold   land 
there    ly  ,,ther   title,    have  delivered   tlie  same  up,  and 
have  accepted  now  grants  from  Mr.  I'enn.      And  it  a  so 
appears,  by   !!,<>  alhrmution  of  Robert  IIi.scox,  a  Quaker, 


THE  king's    PREROfldTTi-u    .n., 

1  ncKJCiATIVE  ABROAD,  CQ 

that  the  N,™1  Store  Companv,  i„  Bristol,  have,  by  their 
renn       dljla.re,  of  land  ,„  the  County  of  Kent    and 

.'-'Mm,.    he„.„„,  „,„,  ,„h„  i,„„,„„,„j„,  „,._j  ^^i  '-O;. 

...  on  the.  „,an„f,„.„.e  f„  ,,„„in,  he„,p.  npwa      Tf 

-t'"  .;'■"'  "';'  *-""«"  l>a.-.,  and  th,n  he 

H„:;  '"        '  ""•  '"  "'"  "'•■'""K™.'-...  and  e„,- 

•     t"  ,    7";    '"■"':«;"""■•■•■  "'■•'  "-  no  benefit  hath 
;'       "   ""■'!  "•  tl'"  -,<1  Company,  fi„.  t|,..  „„,„    .  „, 

C...n,t,e,  and  theto,..,  those  ,,.„nt..t,  en    ,:;7; 

'™''  '>■■ « ■'"»■  :^.M  <■!  Ma:  :,n'  ;:;'::■";"  't 

-■.■-;;:i;:i::d'rjtr';,:t"'"'^''^^-'- 

i- n':,;:: ;;;:  Kn:7;::;::''';r'r"' ''■"^'" 

•I..'. detation,   th,.n.in      :;,""""'■  '■"■ 

» >-»"^ M^,,.:::    :;;:,.;-"' ' - 

"'■*"• -i^-'^ iMa a,,   ';':;■;,"■"•" 


t'J 


H 


OPINIONS    OF  EMINENT    LAWYERS. 


a  w- 


New  Jersey,  in  America  ;  and  all  that  river  called  Dela- 
ware, and  soil  thereof,  and  all  islands  in  the  said  river  ; 
and  all  that  tract  oi"  land  upon  the  west  side  of  the  river 
and  bay  of  Delaware,  which  lieth  from  Schoolkill  Creek 
upon   the  said  river,  unto  IJombey's  Hook,  and   back- 
wards into  the  woods  so  far  as  the  Mincpia's  country,  and 
from  13oi.ibey  s  Hook,  on  the  said  rivtr  and  bay^  unto 
Cape   Ileidoi)en,    now    called    Cape  James,    being  the 
south  point  of  a  sea  warmet  inlet,  and  backwards  into 
the  woods  three  Indian   day's  journeys,  being  formerly 
the  <laim  or  possession  of  the  Dutch,  (or  purchased  by 
them  of  the  natives,)  or   which  was  by  them  Hrst  sur- 
rendered unto  his  said  late   Majesty's  Lieutenant-Gov- 
ernor, Colonel  Niccols,  and  which  had  been  since  surren- 
dered unto  Sir  Edmond  Andros,  Lieutenant-Governor  of 
the  said  James.  I).,ke  of  Yoik.  and  had  for  several  years 
been  in   his   possession,   with   the  free  use  and  continu- 
ance  in.  and   passage   into  and  out  of  all  and  singular 
ports,    harbors,    bays,   riviMs,  isles  and  inlets  belonging 
unlo  or  leading  ^o  or  from  the  said  tract  of  land,  or  any 
part  or  parc-el  thereol';  and   the   seas,  bays  and  rivers, 
and  soil  thereof,  bending  eastward  and  southward  on  the 
said  tract   of  land,  and  all  islands  therein  ;   and  also  all 
the  soil,   lands,  fields,    woods,    umlerwoods,   mountains, 
hills,  fens,  s\vam|:s.  isles.  l,d<es.  riv(.rs,  rivulets,  bays  and 
iidets,  situate  mid  being  within  the  said  tract  of  land  ; 
.••nd  Mnvofthc  limits  M„d  bounds  afoicsiid.  together  wL  •[ 
all    mineral,  .|n;irries  ti-liings,  hawkings,  JuintingH  and 
fowlings,  and  all  other  royalties,  privileges,  profits,  com- 
modities and    liereditaments  to  the  said  t,(.wn,  tbrt,  tract 
of  bud  and   prendses,  ,.r   to  any   or  either  of  (heui,  be- 
longiui:  -r    M,Mert:,inin;-.  .vith   their  and  every  <.f  Mieir 
uppurt<.-nances  in  America;  and  all  his  said   lat43  Mujes- 


THE  KINg'o    prerogative  ABROAD.  85 

ty'8  estate,  right,  title,  interest,  benefit,  advantage,  clai.n 
and  demand  whatsoever,  of,  in  or  to  the  «aid  town  fort 
tract  ol  hind  and  prenn«e.s,  or  any  part  or  parcel  thereof' 
together  with  the  yearly  and  other  rents,  revenues  anj 
prohts  of  the  premises,  und  of  every  part  and  parcel 
thereof,  to  hold  to  the  said  Duke  of  York  and  his  heirs 
at  a,>d  under  the  yearly  rent  of  one  beaver  skin,  when' 
demanded. 

On  the  behalf  of  Mr.   Penn,  it  is  allege.l,  that  it  Is 
probable   the  said  bill  in  1083  might  have  been  passed 
int.)  a  grant,  for  that  they  produced  from  the  Hanaper 
office    where  entries  are  made  of  grants  that  pa.ss  the 
Great  heal,  a  certificate  of  an  entry  in  that  office,  in  tlie 
words    tol  owing,  viz  :     « April    Gth,    1G83,   a  grant    to 
j^^unes   l,..ke   of  York,  of  the  .,wn  of.Newcastle,  .has 
Delaware.  ...tuate  between  Maryland  a u.l  x\ew  Jersey  in 
Auienca   to  him  and  hi.s  heirs  threver,"  such  entries"  m.t 
havmg  been   made  at  the    Hanaper  office,  but    where 
et  e,s  pa  ent   do  pass,  which  patent  nright  happen  not 
to  be  enroUed.  us  .t  i.s  not,  by  the  neglect  of  the  .six  Clerk 
called  the  Uuling  Clerk,  whose  busines.s  it  was  to  ..ee  tie 
same  enroHed. 

„  .f'l''  .t"  '"  ''"'  "''J"''«'".  'h"t  it  t\„.  „„„„,    „.„,,  ,,„_ 
"lk.,1,       ,.   ,|,c.  ,„„e  i>  a  ti„,  .,„„,„„,„,  ,„  „,,,     ^,^,,,, 

"  M;-.  IV,,,,,  an.,  .h„t  Mr.  n, ,„..,.,,„|  a.  „„„     ,J 

ll,e  (  ,„w„  as,u„»t  (i,„  L„r,l   l!a|,i,„„,,,  ||,,v  ,|„  |„„ , 

;;-tH,,,tM,.,v,,,,Havi,,,a,,a,,,,,,,.,,.;,a,,' 
"".":;",'"■""■''    I>"k.-,wi, I,,,v,.  i„  „„.,,,;,  „ 

'"•'"l:'-'l'"'tl..^|..-.-.»u,„„.asalwav«M„l,.,...,|      ' 

" ; -""■•■-' Win ,..,.n„;a„;,,,'    ,:    , 


..       <l 


".I, 


I  \ 


li 


I 


86 


OPINIONS  OF  EMINENT  LAWYERS. 


f»aid  William  Penn,  the  .same  extinguished  the  said  cove- 
nant of  Mr.  Penn  for  accounting  in  the  grant  i^  him 
thei'eof 

Besides,  in  the  «aid  last  grant  to  the  Duke  of  York 
It  IS  recited,  t'.at  the  lands  Avere  formerly  the  claim 
and  possession  of  the  Dutch,  and  had  been  "surrendered 
unto  the  Lieutenant-Governor  of  the  said  Duke  of  York 
and  had  for  several  years  been  in  his  possession  which 
might  enable  him  to  make  the  grants,  in  1G82,'  to  the 
said  Mr.  Penn. 

And,  on  the  behalf  of  the  purchasers,  it  has  been  in- 
^i..ted,  that  it  would  be  very  hard  to  put  them  to  any 
trouble  who  have  bought  under  the  title  and  enjoyment 
of  Mr.  Penn,  and  have  laid  out  great  sums  of  money  in 
improving  their  purchases. 

And  as  to  the  title  claimed  by  the  Lord  Baltimore 
we  are  humbly  of  opinion,  that  the  same  has  already  re- 
ceived a  full  and   final   determination  ;  for  that,  31st  of 
May,  mil  Richard  Burk,  gent.,  servant  to  Charles,  then 
Lord  Baltimore,  praying  that  the  said  bill  of  1683  might 
not  ],ass  the  Great  Seal,  until  His   then  Majesty  .should 
i>e  satisfied  of  the  extent  of  the  letters  patent  formerly 
granted  to  Cecil,  Lord  lialtimore.  wherein  the  said  toMii 
and  ad.i.uent  country  is  alleged  to  be  comprised;  which 
.said  petition  being  refrrred  to  the  then  Lords  Commis- 
sioners for  Trade  and   Plantations,  on  the    13th  of  No- 
vember, KiSo,  ih..i,.  Lordships  made  their  report,  where- 
'"  "'<'.^   'vjH.rt  that  :     ■  /br.  i„g  ex.mine.l  tl  .  matters  in 
•Iifierence    between    tlie    Lor.l    nahi.nnr,    ,„d    William 
Penn,  Ks,,.,  „„  behalf  of  His  then  Majesty,  c<.ncernin.'  a 
tract  of  land   called   Delaware,  they  found  the  l.i.d  "i,,. 
ten.led  to  be  granted  tc  Lord  Baltimore  was  only  lands 
uncultivated,  and  inhabited  by  .savages;  and   that  the 


THE  king's  prerogative   ABROAD.  87 

tract  Of  land  then  in  .,i,p„te.  ,.„  i„,„,.^,  ,^„_,  j 

IT    7Z  '""■°"  ""^  '''"'  "f  ♦>■»  Lo'^  Balti- 

more »  patent    a,  ,t  |,ad  ever  been  since,  to  that  time 

hat  the  r  L„rd,l„p,  Innnhlv  offered  their  opinion    that 
.orav„,d,ng  further  differen...  the  tract  o    ,„„' I   •,! 

T-l^lf  .  ,I"r  ;  ■"'"  '"■'-"-■" '^"i".Je;  nnd  that 

one  half  thereol,  ly.ng  towards  the  hav  ..f  Delav-ire  and 

the  eastern  sea,  he  adjudged   to  helong  to  hi,rMl:t; 

and  the  other  ,.»„•,„  I.„rd  Bal,i„,ore ;"  Vh.ch  rep    ttb 

hen  Majesty  was  pleased  to  approve  of  and  .    ord"! 

«.e  sa,d  lands  to  l,c  divided  accordingly,  and  th»  Lord 

BaUnnore  and  Willia.n  Penn  required  to  vielj  due  .IT 

d.ence    hereunto;  which  report  was  also;,,nfirn,   I      „ 

Seal,  as  on   Mr.  Pcm'.s   behilf  ;«  ,      . 

beings.opped,asuu.t,«:sjrt:  ;!:;•;''"''' 

.™.t,a«er  that  matter  settled,  wtri:;:":: 

-a:^::ss'Lt:e,::"s:;:d"!'™r"'^^"^ 

Charles,  ..:;henu,e;';rti,:^;;:;:;:  :::;$:- 

land ;    hut  tho  ontrv  in  Hu.  H  l-  ^  "'' 

been  made  when   the  Priw  <     i  ,  ^  ^ 

c-at,scai,..hep„::n:;;;:;x,;™ '-"""■'"^ 

4:.;t:;:irw:;,:"2r::-;v;"-- 

-b-o,  that  your  Majesty.,  title  si;:;;:''::::— 


i 


88 


OPINIONS  OP  EMINENT  LAWYERS. 


« 


hy  the  Court  of  Chancery,  before  any  grant  should  be 
made  of  the  premises;  and  if  any  g^ant  should  be  made, 
we  most   humbly  submit   it  to  your  Majestv,  whether 
the  claims   of  purchasers  or  grantees  under'  Mr.  Penn, 
who  have  improved  part  of  the  said  Three  Lower  Counties,' 
should-  not  be  established  ;  but  if  Mr.  Penn  should  have' 
a  title  to   the   Three  Lower  Counties,  bv  virtue  of  the 
two  grants  ,uade  to  him   by  the  late  King  James    in 
i<i82.  when  Duke  of  YorV,  we   have  not  received  any 
answer  why  he  should  not  account,  according  to  his  cov- 
enant, in  the  last  ot  the  said  deeds,  for  the   moiety  of 
the  rents,  issues  and  protits  raised  by  virtue  of  that  grant. 

Edw.   Northey. 
October  21,  1717.  Wm.  Thompson. 

(7.)  Of  the  Kim  I  s  aiithoriftj  over  Guermey  amlJer- 
•w//,  ,'//  the  Attorney  and  Solicitor,  Byder  and  Strange. 

To   the  itight  Honorable,  the  Lords  of  the  Committee 
of  Council,  ior  the  affairs  of  Guernsey  and  Jersey. 

May  it  please  your  Lordshins  ; 
In  obedience   to  your  Lordships'  order  of  the  21st  of 
July,  1730,  hereunto  annexed,  whereby  your  Lordships 
were  pleased  to  refer  the  memorial  and  papers  hereunto 
annexed,  to  His  Majesty's  late  Attorney  an<l   Solicitor- 
(ieneral.  to  consider  the  same,  and  reptn-t  i}-!,-  opini.m 
to  y.Mu-  lordships  upon  the  general  ca.se  of  extents  from 
tlie  i!:xc.Jie.,Mer,  and  :.f  the  process  from  tlie  Courts  of 
K'       •  i^cii  :j,  how  the  same  can  be  legallv  executed,  in 
the  i.lan.ls  of  Guernsey  and   Jersey,  and'   if  n.>t,    what 
otlu-r  ,eme,ly  is  left  to  the  Crown,  fur  the  recovery  of 
their  debts  in  those  i.slands. 

We  have  considered  of  the  matters   so  referred,  and 


THE  king's  prerogative  ABROAD.  89 

are  humbly  Of  opinion,  that  no  writ  of  exten.  out  of  Hi« 
Majesty^  Court  of  Exchequer  here,  nor  any  process 
from  the  Court  of  King's  Bench,  can,  as  the  laws  of  those 
islands  now  stand,  be  executed  there,  they  being  govern- 
ed by  laws  of  their  own,  subject  to  His  Majesty's  order 
m  Council,  and  the  subjects  there  are  not  amenable  to 
the  Courts  here. 

And  we  .tre  of  opinion,  the  only  remedy  the  Crown 
has  lor     nerec  of   their  debts  in  those  islands, 

upon  the  foot  o  the  present  law,  is  by  proceeding  upon 
proper  suits,  to  be  instituted  in  the  Court,  there,  accord- 
ing to  the  course  of  those  Court.,  an,i  .ending  thither 
the  proper  evidence  of  the  debt,  unles.  His  Majesty  shall 
think  fit  to  interpose,  in  his  legislative  cu^-acity,  and  by 
an  order  in  Council,  make  a  new  law  concerning  the 
method  of  ^■.co^■ering  the  Crown  debts  against  the  in- 
habitants  there. 

By  this  means,  His  Majesty  may,  if  he  think  fit,  give 
such  force  tc  extents  and  other  processes  out  of  the 
Courts  here,  as  he  shall  judge  convenient;  but  whether 
he  single  instance  of  inconvenience  to  the  Crown  in 
the  case  of  Carey's  debt,  mentioned  in  the  memorial,  is 
a  sirfficien  ground  to  make  any  alteration  in  the  laws 
ot  those  islands,  is  humbly  submitted. 

D.  RVDER. 

August  12th,  1737.  '^-  ^'^«A^'^'«=- 


18 


J 


I'  ii 


90 


OPINIONS  OF  EMINENT  LAWYERS. 


(8.)  Of  the  Kim/s  rujht  to  the  islandi  in  the  river 
Delaware,  hj  the  Attorney  and  Solicitor-General  liay- 
inojul  and  Yorh,  in  TTlil. 

To  the  Right  Hon.,  the  Lortls  ConimissionerH  for  Trade 

and  Phintations. 

May  it  please  your  Lordships  ; 

In  obedience  to  your  Lordsliips'  conunand.'i,  signified 
to  us  by  Mr.  Poppk',  by   his  letter  of  the  3()th  of  June 
last,  v.'hereby  he  transmitted  to  us  the  annexed  copy  of 
two  clauses,  extracted  out  of  the  Charters  of  New  Jer- 
sey and  Pennsylvaniii,  whereby  the  boundaries  of  those 
Provinces   are  ascertained,  and   thereupon    desired  our 
opinion,  whether  Delawi-re  River  or  any  part  thereof, 
cr   the   islands  therein  lying,  arc,  ))y   the  .^aid   clauses, 
conveyed  to  either  of  the  said   Provinces,  or  whether 
the  right  thereunto  doth  still  reuiain  in  the  Crown  l     We 
have  perused  the  siiul  clau.ses,  and  have   beei:  attended 
by  the  agents  of  the  parties,  who  claim  the  Province  of 
Pennsylvania,  and   their  couM>el,  wIm.  have  laid  l)elbre 
us  a  copy  of  the  letters   patent,  granting  the  said  Pro- 
vince, and  have  heard  what  hath  been  alleged  on  both 
sides;  and  upon  consideration  of  the  whole  matter,  are 
of    opinitm,    that  no   part    of    I)(  lawnre    River,    or  the 
islands  lying  therein,  are  comprised  within  the  granting 
^'ords  of  the  said   letters  patent,  or  of  the  said  aune.\ed 
extract  of  the  grant  of  New  .Jer«-ev  ;  but.  we   conceive 
that  the  right  to  the  same  still  ninams  in  the  Crown. 

15 our    |{  WMOND. 

I'hii,  Youkk, 
August  5th  1721. 


THE  king's   prerogative  ABROAD. 


91 


(0.)  Of  the  Kbu/s  right  to  certain  wmte  lands  in  Nhw 

Hamp,hu-e,  by  the  Attorney  and  SoUcitor-Getieral,  Mmier 
and  Murray.  ^ 

[State  of  the  ca.se  with  respect  to  the  property  of  the 
waste  and  unimproved  lands  in  the  Province  of  New 
Hanip,sh,re  within  the  limit,  of  the  grant  made  by 
the  Council  of  Plymouth  to  John  Mason,  in  the  ye^ 

King  James  the  First,  by  let^rs  patent,  dated  the 
3d  ot  November  1G20,  granted  all  that  tract  of  country 

4)  and  48  degrees  north,  to  Sir  Ferdinand  Gorges,  and 
h,rt,nnu.  other.,  under  the  nan.e  of  tl.  Cc^ncii  e«- 
tabhshe,!  at  Plvn.outh.  in  the  county  of  Devon,  for 
the  planting,  ruling  and  governing  New  England  i. 
America.  ' 

The  C,.,„„.ii  of  Plv„,o„,l,,  l,v  i„,lonturo  under  their 
co„,,n.,„  „,.„,,  ,|a,e,l  T.h  Nov,.,,,,,,.,  X,-,,,  ,„„„,,  „„,„ 

,.„,.,„  i,„„l,  ,„   N,.w  K„,h.„,i,  Ivin,  „,;,„  ,he  L 

"■"""'"V '■>»'■•  r.n-.hes,h. ,h,.,.e,.f..,',„|,vr 

'•■"■;■',""■' "■ il  ll'"H-.,.or,.  „, ,i,.,  |„.,|,T,„" 

1^'   l.r»,  ..„,,.»„..  or  .>l„.a,,,„.a,Ki„.,,  ,u,f„," 

"^ZJT' f "■"■'-'■  ....,„.  f„„„e. 

■ ' ^  • •""' i"'"  .h,. I  „...„„,„,       . 

" "-;•—■■■■  -!.•«  '«•   -i„.l   ,„„|  ft,,,,,  „„,„,„  „, 

iroiM  i'lsciitnwax    |{iv,r.  ^'"'lua 

Tin.  ..act  oln.uutry  was,  i„  cou.x.j.u.nce,  and  by  ox- 


92 


OPINIONS  OF  EMINENT  LAWYERS. 


'  i 


press  direction  of  the  patent,  called  i  .v.-  Han,pshire  ; 
and  the  grantee  obliged  himself  to  est-Mish  sucu  gov- 
ernment therein,  p.  should  be  agre^nble,  a«  near  as  might 
be,  to  the  laws  and  customs  of  the  realm  of  England, 
with  liberty,  for  any  person  aggrieved,  to  appeal  to  the 
said  Council  of  Plymouth. 

In  consequence  of  ^'lis  grant,  Captain  Mason  was  (a8 
IS  alleged  by  him,)  at  considerable  expense  in  sending 
over  persons  to  plant  and  settle  in  this  countrv,  and  in 
erecting  forts  and  oth-r  buildings  and  habitations ;  and 
It  does  appear,  from  several  testimonies  made  use  of  in 
some  actions  brought  by  his  grandson  against  the  very 
persons  he  had  sent  over,  that  considerable  improvements 
were  made. 

In  163;',.  the  Council  of  Plymouth,  by  letters  patent 
dated  tlie  22d  of  April,  cmfirmed  their  former  g-ant  of 
New  Hampshire  t«  Ca^.t.in  Mason,  with  an  extension  of 
the  hunts,  which,  in  the  .said  letters  patent,  are  described 
in  the  lollowing  words  :  '•  All  that  part,  purpart  an.l  ,x.r- 
tion  of  the  niain  land  of  New   England,  beginning  from 
the  nuddie  part  of  Naumkeck  River,  and  from  thence  t.^ 
proceed  eastwards  along  the  .so„-coast  to  Cape  Ann    and 
rouu.l  :.lK.ut  the  snuie  to  Pisratuwav  Harbor,  and  .so  for- 
ward up  wifi.iu   the  river  of  Newwickwannook,  and  to 
t»'^'    »"'tbcst   head  of  .be  .sai.i  river,  and    from   thence 
northwnni  till  si.xty   miles  be  (inished.  Iron,  the  first  en- 
trance ..f  I'i.seatawny  Ih.rbor    and  also  fn.m  Na.unkeck 
through  the   river   thereof  up  into  the  land   west,  sixty 
mde>,  Iron,  w'ueh  periul  to  eros.,  overL-nd,  to  the  sixty 
miles   en.l,  acc.unte.l   from    Pis<>atawHv.   through   New- 

>vu.kwa,ino.k    River,    in    the    laud    uortb-w.stward.   as 
iiloresjiid   ' 

The  ea.stc-rn  huul.s  ot  the  M,„ud  grant  appear  to  be 


THE  king's  PRER'^-ATIVE  ABROAD.  93 

the  same  a,s  those  described  in  the  first,  but  are  extend- 
ed to  the  south-west  a,s  far  as  the  ri v.r  Naumkeck,  winch 
I.S  about  twenty  miles  to   the  westward  of  Mer  ima  k 
he  western  limit  of  the  f<.mer  ,rant,  which  tat  of 
country  ,,m,  between  the  said  two  rivers,  and  extend 
">g    o  three  m.lcs  north-east  of  Merrimack,  had  been 

^t.i  by  the  C.nmci,  of  Plymouth,  to  the  Mas  a  r 
^t^  Co  my,  .n  the  year  1728,  prior  to  the  first  gra  t 
to  Mr.  Mason,  and  ,s  now  part  of  that  colo.  v 

It  IS  alleged,  that  this  last  irranttoMr\r 
r.^4:^    ]        1  fci'int  lo  ivir.  iVlason   wnq 

lictmn  ,,„,|  government;  but  „„  nnch  OLarter  „     thi, 
nppeara  on  record. 

In  the  .„„„.  vear  lf,3.1,  Caph,,.,  Ma,,n,  l,av ,„  j,,, 

mmts     n   K  ''-^  '    '""^    tenements,  and  hereditu- 

Z  '"  ^^'^^  """.pshire,  except  some  inconsiderable 

7'''V'''-'"''''''''^-''''^<''h.H    Tufton,    tbe  brother  of 

.i<>hn.. on   and  other  persons  numtionet,  in  mJ^^' 
I  rxmtl...  death  nf  (',,.,„•„  ^V,^,,„       . 

or  soon  after,    NeNv    11  nM.wl.i..      .         ■  "•'""' .^ '-'r. 

but  he  dviuK  without    iss,,..    fh,.   b...,...- 

1      ^  m   ..  'in.    iiK    iinnia  ion  o\  (.|-  (,,   i;, . 

I  ""' -""""K  ..r  „^.,.  (ill  i,;,-„,  ii„,  „,„.,„.      ', 

•■"'" ■—I.-.. l.|)„l,er.    .,„|,„    M     .:       ,"' 


94 


OPINIONS  OF  EMINENT  LAWVERS. 


,?  *       , 


11 


no  redress  could  be  liad.  ombezzled,  imd  sold  his  stock 
and  effects,  and  put  themselves  under  the  government 
of  the  Massitchusett.'i  ci)lony.  who  then  exercised  juris- 
diction iu  New  Hampshire. 

8oon  ofter  the  restoration,  Mr.  Robert  Mason  (for  R. 
bert  Ttifton,  the  yomi<rer  brother,  had  now  taken  up.  ... 
hmi  that  name,  in  compliance  with  his  grand-father's 
will.)  presented  a  petition  to  King  CI  arles  the  Second, 
setting  forth  the  unjust  and  illegal  encroachments  of  the 
Massachusetts  :olonv  over  his  property,  a:  J  praying  that 
justice  might  be  dcme  him  ;  which  petititm  was  referred 
to  Sir  Ceofry  Palmer,  then   Attorney-General,  to  con- 
p'ier  of  his  title  to  the  country,  who  reported  that  his 
title  was  g(K)d;  and  neverthe!e.ss,  in  the  year  1675,  we 
find  Mr.  Mas(»n  presenting  a  seiumd  petition,  to  the  same 
effect  as  the  former,  upon  which  his  tit'*'  was  again  re- 
ferred to  the  considerntion  of  Sir  William  Jones,  and 
Sir  Francis  Winiiingt<m.  the  then  Attorney  and  Solicitor- 
Ccneral.  who,  uj)on  consideration  of  the  seve.al  patents 
under  wiiich   Ma.son  claimed,   reported,  that  he   had  a 
go<xl  and  legal  title  to  the  lauv's  conveyed  by  them. 

In  1G70.  the  Crown  took  the  governi'ient  of  the  prov- 
ince of  New  H»m})shire  into  its  own  hands  :    a  Ccmmiis- 
sion  passed  the  (Jreat  Seal,  appointing  a  Presi<ient  and 
Co\nicil  to  govern   the  Province,   in    wliich  Cr)mmissi(m 
Mr   Mason's   title  ;s  mentione<l  in  tn«'   I'olloAviu!,'  words: 
''And  wheroas,  the  inhabitants  ..flbe  eonntrv  have  lon.r 
been  in  possession,  in-d  are  -aid  I-,  have  made  considera- 
ble iiriprovements  on  (lie   hiii'ls   the,-   bold     [,Mt   wilhotit 
iiriy  other  titb>    than   what    liatb   been    derived    b\     die 
government  of  Roston.  in  virtue  of  their  iinaginarv  line, 
which  title,  as  it  has,  ly  the  .-[.inion  of  the  .Jiid^e    here, 
been  ult(  r  oct  aside,  so  the  agouts  of  Boston  have 


■       THE  king's  pbhiogative  (bhojd.  93 

consequently  ,li»„„„e,i  „ny  riKht,  either  in  tl.e  »oil  or 
govern„,e„,,fr„,n  the  three  n„le»'li„e  .aforesaid;  and  a 

grants,   Iron,  the  great  (>,.,noil  at  Plym.mth,  for  thi, 
met,  and  were  at  very  gr«.t  e.,.n,e  „,»„,     he  J 

-oned  a  la.s(,„g  eon,|,l,„„t  for  justice  hv  the  ,„id  Mr 
M,s<,„,  ev..  .nee  tl,e  r...,r„,i„n,  however,  to  prev  „  ' 

,      •   *;    ■  ■^■'""'".  ""■  >!"--  Hght  he  alleged  to  th/,„il 
we  have  oh„«e,,  Mr  M.  .,  to  deehu-e  „J,  ,„  ha  d       i 

of  June  10,9,  nor  n,ole,t  any  in  their  p<,,,»„,„i„„  ,.„,  ^^ 

"'"  ';,'  < "■    '""  '""1«-  -t  titl<.  t„  then,  and    het 

--   '— .r,  pr,.vi.U,,  they  would    pay  unto  him   by 
fu.r  agreen,ent,   n,    lie,,   .,f  „„  ,,„„_   ;.  /^  ^^ 

or  orchard.,    a,„l,le  ,„.  ,,a,s,„re,  whieh    have    la-en    i,„ 
prove,    l,y,he,n,whieh  he  will  a,.e„«ho,,,d,.  ho,,;, 

r::pr:r:r::,:r;:rr;;;: 

f^"  "•"'  '■••'■ -il"  "11  ,lif!e,en,...s.  if  v„„  ,..  ,      ,„^     '        ' 

yon  are  I.,  se„,l  ho 1,  ,   ■  ,  '      '"  ''  '""' 

.ta,..,i., , her  ,"".'^  "'"■'•>■"'"'   '"'l»"'i"lly 

^- .1,^ ;::;;,".,:,::;::;•■;:;"';■ "-". 


i   ■■ '  ! 


I    i 


.;.i1^tltWff»' 


'mill 


i 


96 


OPINIOiNS  OF  EMINENT  LAWYERS. 


In  1680,  Mr.  Mii.son  went  over  to  the  Province  to 
pmseci.te  his  title,  and  although  many  of  the  inhabit-' 
ants  at  first  appeared  willing  to  submit  to  it,  yet,  as 
the   members  of  the   Council    were  proprietors  of  the 
greate.^  t  part  of  the  cultivated  lands,  thev  made  vse  of 
all  their  i.iterest  and  the  influence  which  their  situation 
and  character  gave  them,  to  prevent  his  getting  posses- 
.sion  ;  and  they  so  far  prevailed,  that  he  was  at  length 
obliged  to  commence  suits  in  the  Courts  there,  against 
Nome  oi  the   principal  proprietors.       While  these  suits 
were  depending.  Mr.  Mason,  in  order  to  strengthen  his 
niterest  at  home,  made  a  surrender  to  the  Crown  of  all 
fines  and    •.rfeifures   in  x\ew   Hampshire,  and  of  one- 
filth  of  the  rents  and  revenues  for  the  support  of  gov- 
ernment. 

In  1781,  a  conuni.^^sion  pa,ssed  the  Great  Seal,  appoint- 
ing Edward  C.anfield.  Es({.,  Lieutenant-Governor  of  New 
Hjunpshire,  in  which  Robert  Ma.son,  styled  the.ein  pro- 
prietor, and  eight  others  are  appointedCouncillors;  and 
there  is  a  clause  i.^^erted  in  if,  recognizing  Mr.  Mason's 
title,  in  the  .same  words  as  that  in.serted  in  the  former 
conm)i,ssion. 

It  does  not  appear,  that  the  authority  or  influence, 
which  it  might  be  supposed  would  be  derived  to  Mr.  Ma-' 
Noii.  from  this  commi.s.sion,  had  any  effect  to  rein.stnte 
him  in  im.ssession  <.f  his  jn-opcrfy.  the  inhaLitants  still 
continuing  t..  contest  his  title,  th.n.gh  .several  judgments 
were  g:ven  in  his  Ihvor  in  the  (jourts  there,  one  of 
which  was,  upon  an  ai)peal,  confirmed  by  His  Majesty  i„ 
Council. 

I"  "r  about  the  year  IfiSo.  Mr.  Mason  returned  to 
KuLdaiid,  when,  bo  die!,  leaving  the  Provincr  of  NVw 
ll.unpslun-   to  bis   two  sons,  John  and   Robert  xMu.;on 


THB  KIN«'«   PHEROGATIVE  ABHQ^p.  Q'7 

.  who  in  ](i90,  «„lu  it  t„  Samuel  Allen,  of  London,  fov 
two  tlu„«,nd  ,even  lum.lmj  ,,ou„d,,  havinR  f,r„t  sued 
out  a  hue  and  recovery,  in  We»tn,in,ter  Hall,  in  order  to 
bar  the  eatoil. 

Tl.e  fmt  mention  n,flde  of  Mr.  Allen',  title  after  thk 
pur.W,  .  the  Cl.r,..r  .ranted  ,,,  Kin,  William  to 
the  Ma,.a..h,„e(t»  Bay,  in  hm.    -here  hi,  riRht  i,  re 

-  h,n„  heren,  ,.„ntai,.ed  ,l„dl  excen.l  or  he  understood, 
Zt^'T  "Tl":  "''°'"''""-'  ""•^-  "«'"■  "*■  ">'«■ 
Uiant  elanun,g  Iron,  and  under  John  Jt,,„„_  j.;,,,  de- 
o«„ed,  or  any  other  |,or,„„  or  person.,  hatl    or  have 

o  clanneth  to  hold  and  oujoy,  of,  i,,  to  or  „„t  of  uly 
part  or  part,  of  the  prenn,e,  situate  within  the  lintita 
ahov„.n,en„oned,  hut  that  the  ™id  .Sanuu.)  Allen,  aud 

hi       ?,*"■■    ,™    '  ''"■" ""'  ''"'""•">  """  '"'J  "hall 

bave,  hold  and  eu.,oy  the  .au,e.  in  .,uel,  n.aui.er,  and  no 

«*^1-.  than  a,  tf   tho.e  pre.,e.„t,  had  not  been   had  " 

1"   Ki'Jl    Mr.  Allen   w.us  a|,|»>i„ted  Lieutenant-Gov- 
«"o.-o,  „.,,  Prnviuee,  who  hna.^h,  n.auy  ae.ion,  iX 

-.w.on  ,„  the  land,  he  ,daiu,e,l ;  hu,  a  verdi,.t  w„.  .i^e  , 
"Kau„rhnuhy,he,jury  in  everv  action 

In  l,;i.7    l.,.rd  liell„u,on.    wa,  appointed  (lovernor  of 

t-o^eruor  ol  .New  ll„n,p,hire.  w„,  .,u|,er„.|ea 

nl7U2.,;,,l,a,el  Allen  l,r,a,Kh,  an  appeal  0,,,^  Ma- 
J  M>      n   (  ouu,  ,1,   ,r,„u  a    verdic  and   .ju.lKu.eut  .iv™, 

;*•""","'" '  ""'"■""■  ''•""■'  '■'••'"■lio.tnv  i,   C 

«.U  H. lion    who,  at  that  tiua,   „„..e,.,ed    ,he  large., 


i.ll 


!l!-l 


4 


■^^ 


98 


OPINIONS  OF  EMirve,xVT  LAWYERS. 


quantity  of  land  in   New  Hampshire,  which  said  judg- 
ment was,  upon  a  hearing  of  ail  parties,  affirmed  ;  but, 
in  regard,  the  judgment  was  not  final  in  its  nature.    The 
order  directed,  that  the  defendants  should  be  left  at  lib- 
erty to  bring  a  new  action  in  ejectment,  in  the   Courts 
in  New  Hampshire,  in  order  to  try  hi.s  title  to  the  pro- 
priety of  the  lands  in  question,   or  certain  quit-rents, 
payable  out  of  the  same  ;  and  thot  in  case,  upon  such 
trial,  any  doul  t  in  law  should  arise,  the  jury  be  directed 
to  find  the  matter  s{>eci:illy,  that  is,  what  title   the  ap- 
pellant and  defendant  do  sev.  .ally  make  out  to  the  said 
lands  in  question,  and  that  the  points  in  law  should  be 
reserved  to  the  Court  before  which  the  same  sliould  be 
trietl,  or  if,  upon  such  trial,  any  doul)t  should  ari;te  con- 
cerning the  evidence  gi\-en  at  such  trial,  such  doubts 
should  l)e  speciall\    stated  and  taken  in  writing,  to  the 
end,  that,  in  case  either  party  shoidd  think  to  appeal^to 
Her  Miijesty  in  Council  from  the  judgment  of  the  Court 
therein.  Her  Majesty  might  l)e  more  lully  informed,  in 
order  to  a  final  determination  of  the  said  ca.-<e. 

While  tins  appeal  was  dep^Miding  l)ef()re  Her  Majesty 
in  Council.  Mr.  Allen  presented  a  petition,  praying 
to  be  i)iif  in  possession  of  the  waste  and  uniuiproved 
lands  in  the  said  Province  ;  and.  on  the  28th  oi  January 
]7n2-.'l.  his  i)etition  was  referred  to  tlie  Atb.rnev-Gene- 
ral  lor  his  opinion  :  Ji)-f,(,  whether  Mr.  Mason  liad  a 
right  to  till'  waste  lands  in  the  Province  of  New  Hamp- 
shire ;  m-otuf.  what  lands  in  that  Province  were  to  be 
reputed  waste  lajids  ;  and  tliirJ,  by  what  metluKls  Her 
Majesty  might  put  him  in  possession.  Upon  the  5th  of 
April,  ITOH,  the  Attormn-General  reported  his  opinioti, 
"  that  Saiiuiel  .Vllen  had  a  goo,l  title  to  (he  waste  Undu 
of  the  Province  of  New  Ham^.  hire  ;  that  all  lands  lying 


3;il 


THK    king's  PRBROGATIVE  ABROAD.  99 

uni„clo«Kl  and  ,m«;c„|,ied,  were  to  be  repn.od  waste  • 
and  .hat  Mr.  Allon  ,„lsht  ™te..  into  and'take  ^"l' 
..on  o,  th.  same  ;  and  tl,„t.  if  l,,.  ,|,„„,,,  ,,  .^^^^^ 

(Her  Ma,,e»t.y  hav.n.r  Courts  of  Justice  wl.l.in  the  «d 
Province.)  to  a.sert  !.is  ri).|,t,  a„d  punish  the  tre.,pa..,.,ers 
b.v  ogal  pr,«edi„s.s  ;,..  ,!,„se  Courts  ;  aud  that  it  would 
not  be  proper  /or  Her  Ma.jest,  to  interpose  in  this  mat- 
ter,   unless  tlle  question  cmcerninR    the    riirht    slio.ld 

IT  ^  7,  "''^  *'"-*'-''-^  ">  "•'"-'  »'•■" "-  i'.H« '  1 

ha   *-ld  be  ,.,ve.  in  the  ,.„urt.s  in  the  said  ftovinee. 

a,e  ,t  ,nght  be  reasonable,  as  he  conceived,  to  diree 
Of  M  .  Allen  „,s,sto,l  on  it.)  „n  the  trials,  that  might 
be  had    or  .settling  hi,  right  to  ,h„  said  Province,  that 
•he  M,atter»  ot  li,ct  relating;  to  his,  and  the  title  of  oth- 
ers  clamnng  the  .san,e  hnuls.  n.ight   be  spciallv  ibund 

t^Ktls  thal^  the  n,atters  of  «„.t  might  appear  before  Her 

ttt";;  11  r''""      "'"""''  '"  """''  '■'■""'  'l-J"'l«»ents 
that  should  he  given  ui  the  said  Province  " 

In  con.,e,,„ence  of  this  opinion  of  the  Attornev-Gen- 
eral,  Colonel  Dudle.v,  then  Governor  of  New  England 

r  Air""',  -„v"""  '■""" '""  *'-•■ "-'  "■  ™- 

Mr.  Allen  should  be  opposed  by  the  inhabitants,  and 
hnnlered  Iron,  entering  quieth  into  possession  of  the 
waste  lands,  or  should  be  disturbed  in    ,l„.  po.sse.ssi^ 

hereof  whereupon  any  trial  or  trials  s, Id  be  bro..gl 

belore   Fler  Majesty's  Courts  ther..  li.r  s,,,|i„,  „„,  tut 

X"-""",':""'^- 1 -bat  on  such  ,r ,n,.,ls  ,be  s,  ^ 

Allen  ,  ,d  n,s,s,  ,h„,  ,1,,.  n,„„ers  of  li,c,  should   be  s 
caly  lonnd    by  tbe.iuries.  that  he  .should  do  ail  which 


-jratel 


100 


OPINIONS  OF  EMINENT  LAWeRS. 


'I 


Si, 


On  the  20th  of  l^ebruary,   1703-4  Colonel  Dudley  ac- 
quainted the  Assembly  of  New  Hampshire  with  the  or- 
ders he  had  received  relative  to  Mr.  Allen ',s  title  ;  upon 
which  tin    Assembly  addressed  him  to  represent  to  Her 
Majesty,  that  they  were  sensible  of  her  rej^ard  to  justice 
in  the  late   ^rial  between   Mr.  Allen  and  Mr.   Waldron, 
which  had  forever  oblijred  them  to  a  ser-e  of,  and  reso- 
lution in,  their  dut\  and  obedience  to  Her  Majesty  ;  that 
they  only  claimed  the  property  of  such  land  as  was  con- 
tained within  the   I)ounds  of   their  towns,  which  was 
less  than  one-third  part  of  the  Province,  and  had  been 
possessed  by   them  and  their  ancestors   for  more  than 
sixty  years,  and  that  they  had  no  objection  to  the  other 
two-thirds  being  adjudged  to  Mr.  Allen. 

On  the  3d  of  May  ITOo,  the  inhabitants  and  terre 
tenants  f<<"  the  Province,  at  a  general  meeting  held  at 
Port,sraouth,  came  to  the  following  resolutions  with  re- 
spect to  Mr.  Aliens  title. 

"  That  they  had  not,  on  behauof  themwlves.  nor  any 
the  inhabitants  of  this  Province,  (whom  they  represent- 
ed.) any  challenge  or  claim  to  any  part  of  this  Pnivirce 
extra   the   bounds    of  the   lour  town,'*   of    Prntenimith, 
Hampton,  Dover  and  Exeter,  with  the  hamlets  of  New-- 
castle  and   Kingston,  kc,  appertaining,  which  were  ftll 
comprehended  by  a  line  on  the  western  part  of  Dover, 
Exeter  and  Kingstown,  alivady  known  anil  laid  out,  ami 
should  be  lorthwith   revised  ;  but  the  .sni.j  Sanmel  Al- 
len, Es(i.,  his  heirs  and  a.ssigns.  might  peaceably  hold 
and  enjoy  the  said  great  waste,  containing  forty  milen 
in  length,  and  twenty  miles  in  breadth,  or  thereiUxHite, 
at  the  heads  of  the  t^nvns  aforesaid,  if  so  should  pleasj 
Her  Majesty:  and  that  the  inhabitants  of  this  Province, 
at  all  times,  sh<juld  bo  so  far  from  giving  interruption 


THE  king's  prerogative  ABROAD.  101 

to  the  .ettloment  thereof,  that  they  declared  on  their 
behaf.  and  by  the  power  given  them,  that  they  desired 
by  all  rno^^..  that  the  w.   te  might  bo  planted  and  filled' 
with  mhab.tants,  the  lands   being  very  capable  therool" 
to  whon.  they  would  all  give  their  assistance  and  enecnr^ 
agenient  as  far  as  they  were  able. 

"  That  i..  oa.se  Samuel  Allen  should,  for  himself   his 
be>rs,  executors  &c.,  forever  quit-claim  unto  the  present 
diab,.tMhe.r  heirs  and  a.sign.,  forever,  of  all  that 
txact  of  land,  and  every  part  and  parcel  tliereuf.  with  all 
privileges  &c.  situate,  lying  and  being  within  the  seve- 
ral towns  „i  this  Province,  to  the  extents  of  the  bounds 
thereof;  and  al.so  warrant  and  defend  the  sane  to  the 
■"habitant,  against  all  manner  of  persons  whatever  free 
from  n.ortgage,  entailment  and  all  other  manner  uf  in- 
cmnbranoes,  and    that   this   agreement,    and    (he  lands 
Hiereui  conta.ned.  .should  be  accepfe.l  and  confirmed  bv 
Her  Majesty;  then,  and  in  such  case,  thev  aereed  t.  .i- 
lot  and  lay  out  mito  Saimiel  Allen,  his  heiVs  and  assign. 
forever,  hvo  hundred  acres  of  land  out  of  the  townships 
of  Portsmouth  and  Newcustle,    1500  acres   out  <,f  the 
t«..ish,p  Of  I)...e,  1500  acres  out  of  the  townships  of 
Hampton  and   Jvmgstown.  and    1500    acres  out  o    the 

toM-nsh,pot  Exeter;  all  which  Unds  should  be  laid  o 

to  urn.  the  said  Samuel  Allen,  out  of  the  ..,,.....:; 
of  the  ivspect.ve  towns,  ui  such  place  or  places  (not  .'v- 

-dmgth,.eeplacesinatown)as..houl  heuit  ..- 
ven.pttorMr.A.len,andleastdetr.menfaltot.  : 
lialjitauts  of  the  town. 

"Aud  further,  ti,.y  a,^,,i  to  pay  to  Samuel    A  .en 
his    heirs    or   a.ssi^,s,    two    thousand    pounds      ..........e 

money  of  New   K„glan<I.    (that  is  to  ,,y)  .        ,.    * 

poui^Witliin  twelve  .ithsat^thlLip;::-!:^ 


M^' 


102 


III 


OPINIONS  OF  EMINENT  LAWYErtS. 


11 


Majesty's  confirmation  of  this  their  agreement,  and  the 
other  thousand  pounds  within  twelve  months  after  the 
first  payment. 

"And  further,  that  all  contracts  and  hargains  formerly 
made  betA.een  Mr.  M.uson  and  Mr.  Allen.  wi*h  any  the 
inhabitants,  or  other  Her  Majesty's  subjects,  which  were 
honajrde,  for  lands  or  other  privileges,  in  tho  pos.session 
uf  their  tenants,  in   their  own  just   right,  besides  the 
clann  of  Mr.  Ma.son  or  Mr.  Allen,  and  no  other,  should 
be  accounted  g(x>d  and  valid  by  these  articles  ;  but,  if 
any,  the  purchasers,   lessees  or  tenants,  should  relu.e'  to 
pay  their  just  part  of  what  monev  should  be  o-reed  to 
be  paid,  referring  to  this  aflair  in  equal  proportion  with 
the  rest  of  the  inhaoitants,  acconling  U^  the  land  they 
hold,  then  their  ,^hare  should  be  abated  by  Mr.  Allen  out 
of  the  two   thousand    pounds   payable  to  him  by  this 
agreement. 

"And  further,  that  upon  Mr.  Allen's  acceptance  and 
underwntmg  of  these  articles,  thev  pronn-.^ed  t«  give 
gO(xl  personal  security  ibr  the  payments  nbovesaid. 

'And  further,  that  all  actions  and  suits  in  the  law 
depending,  or  thereafter  to  be  brought,  concerning  the 
premises,  should  cea.se  and  determine,  and  be  void, 
un^d  Hvr  Majesty,-,  .  ^asure  should  be  further  known 
therein." 

The.se  propositions  having  been  finallv  .settled  and 
agreed  t<).  were  orderc.l  to  be  i)resented  to' Mr  Allen  for 
his  acceptance  :  but  his  deafh^  which  happened  on  the 
next  day,  prevented  it. 

Upon  the  death  of  Colonel  Allen,  his  son.  Thcmias 
Allen.  petiti(med  the  Crown  ihat  an  appeal  brought  l,y 
his  father  to  the  Governor  and  Council  agniiist  a  judg- 
ment given  in  the  inlerior  Courts  in  favor  of  Waldron 


THK  king's  PRKROGATIVE  ABROAD.  103 

might  be  revived  ;  which  petition  having  been  referred 
to  the  Attorney-General  lor  his  opinion,  wliether  it 
might  be  proper  for  Her  Majesty  to  grant  the  prayer 
hereof;  tlio  Attorney-Genoral,  on  the  23d  of  March, 
J/05  0  reported  hin  opinion,  that,  by  the  phiintiff's 
death,  the  writ  of  error  was  abated,  and  could  not  be 
revived. 

Upon  Mr.  Allen's  suing  for  writs  of  ejectme  i  in  his 
own  nanu^  lie  was  cast  with  costs,  whereupon  he  ap- 
pealed to  Her  Majesty  in  (buncil ;  but  died  before  the 
appeal  was  doterniined,  having  first,  by  deed  of  sale 
dated  the  28th  of  August,  1700,  conveyed  one-half  of 

land  *''  ^''^  ^'^'"'''''  ^''^'^^'  ""^  ^'^'''  ^"  ^"""^  ^"«- 

Upon  the  death  of  Mr.  Allen,  the  half  of  New  Hamp- 
shire  which  remained    unsold,  devolved  to  two  infant 
«ons,  but  It  do        ot  appear  that  any  application  was 
ever  m.de  sace  th.     time  by  them,  or  any  one  in  their 
behalt,  or  by  any  claiming  under  them,  to  be  put  in  pos- 
session;  and  in  the  year  1716,  Colcnl    ^hute  was  ap- 
pointed Governor  of  New  England,  v  ith  a  power,  in  his 
commission,  of  granting  lands  in  New   Jiuuip.hire-  in 
consequence  whereof,  several  townships   were  laid  out 
nor  does  it  appear  that  any  claim  of  property  was  set  up 
until  the  year  1746,   when  John  Tufton,  who  had  taken 
upon  him  the  name  of  John  Mason,  and  who  is  one  of 
he  surviving  grand-sons  of  Robert  Mason,  pretending 
«       the  hue  and  recovery,   sued   out  in   Westminster 
ll.>.    i.y  John  and  Kobert  Mason,  in  1691.  previous  to 
the  conveyance  by   them  to  Samuel  Allen,  was  illegal 
as  It  ought  to  have  l.en  done  in  the  Courts  there    h?m 
selt  sued  out  a  common  rec<,vc.y  in  the  Courts  of  New 
Hampshire,  ,„  consequence  whereof  the  sheriff  put  him 


i;^ 


n 


!l 


t  t  'At HI 


104 


OPINIONS  OK  EMINENT  LAWVEHS. 


it 


in  possession,  aud  he  sells  his  ri;2;ht  by  daeds  U,  sundry 
persons  in  the  Province,  who  have  taken  upon  tliem  to 
Sii-ant  hinds,  and  lay  out  townships. 

<Jnr.s/i'o,i.—\\i.^>t\nir  the  unilbnn  .silence  and  discou- 
tiiu.ancc  of  all   «ort  of  claim  to   the  waste   and   unim- 
picvcd  lands,  within    the   Province  of  .New  Hampshire, 
l"'»f    more    than    forty    years    successively,    during    the 
greater  part  of  which    time   the  Crown  has  occasionally 
n^.ade  sevend  grants  of  th.-  unimproved  lands  of  the  said 
Province,  without  exception  or  complaint  from  any  per- 
son  or  liimily,   does  not  prescriptively    vest   the  waste 
hm.ls  of  the  Province   in  the   Crown  .'      And  how  liir 
'-.in  ativ  private  claim  to  the.se  lands,  so  long  deserted, 
!'«•  iiMU  iv\  ive.i  against  such  an  exercise  of  power  over 
tlicm  ill  the  Crown  ?     If  these  waste  lands  are  not  in  the 
Crown,  to  whom  do  they  belong  >    And  what  will  be  the 
regular  and  I-  -t  method  of  bringing  this  matter  to  a  final 
legal  di'termination  I 

1 1  is  impossible  t<.  g  e  an  answer  to  this  yw.«v>  witU- 
«'iil  knowing  many  circmst^.nces  not  uj  p.-aring  upon  the 
.-late  of  this  case. 

/•V,.v/.   It  is  n«.ked  to  whom  the.^>  lands  belong  I  They 
w.re  oiigiually  granted  to  Mas,>n  ;   thev  Were  after  Wurd»< 
<-.nve^^d  to  Allen.      Whether  that  cenvevance   k'  g.Kn] 
depends  upon  the  will  of  John   Mason,  not  particularly 
•stnled:   up:m    the    fine  an.l   ivcoverv   said  to  have  iH-ejj 
levied   and   sulVered,   not    particularly  stated  ;   u|)<m  tho 
HNii:..  "   laws  in  New  H.impshire,  in  relation  t..  barrmg 
estates  (,,il,   n.-i  stated  at  all  :  u,xm  the  inlimcv  o,-  other 
di.sabdity  ,.f  the  issue  in  tail  :   hi«  ac<p.iescen(;e";  the  act*4 
"'■  li"iitati..n  in  New  Uamp.shire,  none  of  which  matt.rs 
are  lu-lbre  us. 

^icoto/,     It    is    u-keu,    whethei    the\    U-Iouk  t.)    tlw 


THE  If  M's  PR,„ooiTITE  iTOO.D.  lOf 

Sr^ln  "*'' ™rr"'  "■""  "-i'^""""!.  that  neither 

";."  r  U."n«  "ThifLf  ^I  ^""^  -^^''  '«'-  "»« 
.„;„  .         '""■"'■     J  hi»  aependa  upon  a  Tariety  ol  cir- 

the  acts  done  by  the  C,ow„  in  the  meantime  ;  the  kind' 

ferant,  fron,  th,.  Crown,  have  quietly  p„s„e»«„d  and  im- 
proved,  ^,  great  regard  i,  „|„„,,  ,,„,!   ,„  pe„„^  T 

have  settled  land,  in  America  tl,^t  i,  ■    ,      , 

for  a  .l«l„  .;.]     .    ,     "'""':''•  "'»' ''  i»  harlly  poiujible 

tor  a  ,lale  ftle   to  be  «  circun,,.anced  a,  to  mtsvail 

U.ey  have  i.en  permitted  to  improve,  i,  extremely  ma- 

UlKm  the  whole,  we  cannot  advise  anvthing  «o  proper 
a    that    he  p„rtic.,  if  .u,y  „„i„  „,  „„„,„,^„«^  '~I^;. 

W  re  the  Court,  a.,  ,„  l«  ,ran,.„,i.,„d  over  to  Kngland 
m  ca«..  ol  ,„,  appeal  to  the  King  in  Council, 

A"S"»t  7,  1752.  ";  '''"''«■ 

>V.  MuHSAr. 

(10.)    J/r.  We.(\,ojn,uo,,  how  far  ti^  Khu,  has  a 

Ca.se.     By  the  treaty  „f  Utre.ht,  th.>  Ki„,  of  France 

gav.  up  tlK.    Fn.„<.h  p„.,  .r  N.wfo..,.,,„„3  to   Gr^ 
Bnta.n,  Ua  the  Fren.-l.  ...huhitants  u.n-  ull<,...d  to  re! 

»!';■"  ^  -'•^'  '■'"•!  -.J..y  tJu.ir  .states  and  .ettle.nent.  pro, 
-de.l  they  ^.nUWie.l  tl,..n.elves  to  he  .ui.ect.  ..f  oi^ 

Bnt.u«     and   tho.e    who    wouM    not   do   it.   had  C 
Icl         '""'■  ""  ^^'^'  ^'^'^   ^"->    ^''^  -eable 
16 


I 


106 


OPINIONS  OF  EMINENT   LAWYERS. 


iJut  ..y  Her  Into  Majt'sty  >  k'ttor.  in  considenitlon  of 
the  Kiiifi;  of  France's  rcleusiiif;  a  number  of  Protestant 


slavcH  out  of  his  gallies,  she  did 


habitants  at  Phicent 


i)orn:it   the  French   i 


n- 


ia,  in  Newtbuiuiland,  uho  were  not 


willing  to  become  lii'r  sul)jecis,  to  sell  and  dispose  ol'  tlieir 


hou 


ses  and  lands  there 


Quart. —  Wiiether    tiie    Queen,     bv    1 
couhl  dispose  of  lands  ;rninled  to  the  (. 


ii-r    said    letter, 
treaty 


lovvn  bv 


:  \ 


I  am  of  opinion  that  the  Queen  i  luld  \\u\,  bv  her  let- 


ter, dispose  of  lands  ^'ranted   to   the   ( 


but  if  sheemered   into  auv  reiiul 


rnwn  bs   treaty 


Crown  of  France  for  that 
of  nations,  enj^ajicd    to  d 


ir  a<ireeinent  with  (he 


purpose,  she  was,   by  the  law 
)  t'vt'iytlMu<;   in    her  power  to 


enable    the    French    to    jiave    the    iH'uelit    of   it;    which 


m 


ight 


be  done   b\    her   conlirmiufr  the    title    to   such  of 


her  subjects  as  siiould  ])ay  tiie  F-encl 

money  or  otherwise,  for  their  lauds  or  In. uses. 


1  a  consideration,  in 


&c. 


March  10,  J71D-20. 


Ku  II.  West. 


V        ' 


(11.)  The  opinion  of  th,  .  I  H(  run/ ami  Soliritor,  Yorkfi 
anil  T,iJhnt.  ,rl„fJnr  th,  A7//y.v  ri,jhf  to  th,  Jj„<h  of 
Pt)naifii,/r,iii(iiii  in  th,  Croirn. 

To  the  Ki^dit  H.tn.,  the  birds  ('.immissiouers,  for  Trade 
and  Plantations. 

May  it  plea-^e  your  I.ordships  ; 
In  obedience  to  \()ir  Lordships' commands,  signified 
to  ii.s  by  Mr.  Poppj.  ,  r.i'erriiiL;  to  us  tlie  ^tat'  of  a  ca.se 
hereunto  anie\e<l,  conceriii  the  right  !o  a  tract  of 
land  1;  lug  between  the  rivers  Keniieb.  cl<  and  St.  Croix, 
and  directing   us   to    hear   both    parties,  and    renort    our 

OJ)illio||     ill     point   of     |,iu       tlu'lTlipon.    fo   \,,!J!-   f,iird.--iiii)s  • 

oudalise,  in  obi'dience  to  your  Loidshij).-.  CiMiuiuuls,  Hig- 


THE  king's    prerogative  ABRO 


nifit"!  t 


()   n 


><   hy   Mr.  P()|)|)l,..  tv{ 


<'ri-iii;i;  to  ns  th 


nnnrx-od  petitions  „r  Sir  Mihvo  Lake"  Ba 


ITS.  nud  r.l'SjMmicI  W-M 


<'•«.!<.  K: 


'•|.,  and   odion 


opinion  upon  the  sni 


>.  nicrchant, 
•11(1  (iirocti 


MO  t 


.4D.  107 

i(>   wvora! 

rnnct,  and  oth- 

on  I)ohalfof  Elisha 

nj?  us  to  ro]>oTt  our 


fiiderod  t\ 


o  \ 


that  the 


K'  ■'^iiid  s(ato  of 
■•^■■lid  state  oj' 


our  Lordships;  avc  h 


;i  case  anil   petition 


wo  con- 
"*:  and  find 


Pachiisetts  Charter,  it 

•••'lonies  coinnionlv. •ailed  and  I 

('oh)nv  oC  Ma.<sacl 


■•'  <asc.  sets  forth,  that,  !,v  the  M. 

;;  ordained,  that  (he  territorie.s  and 
l<ii'>\vn  J.v  the  name  of  the 


PI 


ynioiith.  the  P 


'"•-'■t--^  Hay.  and  tli,.  Co] 


on^• 


fovinee 


Aoadi 


Ar. 


.r  N 


ine 


a  or 


th<'    t 


e\v 


l>(>t 


ova  Scot 


•''•ritorv  eaUed 


P 


"cen  the  .said  terrif 


'"■   •">''    'II  fl,;,t   tra.'tof  land  1 


orie 


•ovinee  of  Main,.,   I 


>r  \. 


VI 


'va  Scotia  and  tl 


into  one  real  P 


"'  »'m-ted.  united  nm] 


o  s 


:iid 


the  Afas.saclni.selts  H 


I'ovince.  I)\-  th 
in    in  X 


ineorpor  ted 


^'"     *f"it  their  Majesties  ,|o,  tl 


;ianie  of  the  P 
<'^v  Kn-land. 


'i<>vin<  e  of 


mliahitants  of   tin 


■ai( 


Massachusetts  l\ 


I    I 


"'ivhy,  in-nnt  uiit      the 


Now  Kiiyland.   in  .\ 
in  the   said    Charter 


i.v.  and   their  su( 


n-vinc,.    or  Territ 


orx- 


<'t>s.sors,  all  tl.at 


>r  the 
I)art  of 


tl 


»'  lan.js   and 


""••"■••'■  lyin-  within   the  iMMuid 
•  '•""'•"la.ly    mentioned  ;   and  al 


count 
Scot 


'•'n'ditauient-<    I 


iries 


so. 


ry  or   territory    c,»i 


.vini;  and   hei„, 


nnio 


a;  and  all  those  lands  and  1 


"ly    called    A<ad 


in    (ho 


ia  or  \ 


•va 


cvtendinu:  hct 


Scoti 


"een  the  said 


"''••■'''fanients  Ivinfiand 


"•   and  the    river   of  Sa-adal 


o'inlrv  or  territ 


or 


.(•  N 


ova 


■'<ny   part    (hereof 


"Is  and  Wood   .r| 


WiM 


and  al 
■onnds 


laiid 


'"■'<    •"•    Ki-nneheck 
^'i-onnds.  place.s.  s<,il> 


or 


anri  (.tli<-r  lierrdit,- 


ineiit 


•^  a 


within    th 


iu\ 


'avens,  po,ts,  riven 


d    I 


prennses  what 


cverv  part  an.l    pare!  thenul 
•->'■' -^inL' within  ten  lea;r,„. 
land,  within  tl 


""""'•"•*•■-   and    limit      ;,( 


Waters, 


•'"'■V'-r,  l\i„. 


'"I'esaid, 
"""'  "I-",  all  i.|,,„ds 


and 
and 


i«'  Mid  Ixinrid 


•llleclh    o 


H.  and  all 


'I'I'">^i'e  tlie  main 


nunc 


.  if' 


•,  •. 

^K. 

f ^^^^1 

^^^  t 

H 

1 

1 

1 

f 

1 

'1 

'^^1 

:.M 

Httiil 

1 

f 

1 

108 


OPINIONS    OP  EMINENT    LAWYER!?, 


rals,  as  well  royal  mines  of  gold  and  silver  as  other 
^mes  and  minerals,  whatsoever,  in  the  said  lands  and 
premises,  or  any  part  thereof,  to  have  and  to  hold  the 
same  with  their  and  every  of  their  appurtenances  to  the 
said  inhabitants  of  Massachusetts  Bny,  and  their  succes- 
sors, t<.  their  only  proner  use  and  hehoof,  forevernio/e 
be  holden  of  their  Majesties,  as  of  their  manor  of  East 
Greenwich,  &c,  yielding  therefore,  yearly,  one-fifth  part 
of  all  gold  and  silver  ore,  &c. 

That  in  the  clause  in  the  said  Charter,  directing  the 
choice  of  ihe  councillors  or  assistants  of  the  said  Pro- 
vince, who  are  to  be  twenty-eight  in  number,  it  is  or- 
dered that  eighteen  of  them,  at  least,  shall  be  inhabit- 
ants or  proprietors  of  lands  within  the  territory  formerly 
called  the  Colony  of  the  Ma^^sachusetts  Bay,  and  four,  at 
least,  of  the  inhabitants  or  proprietors  of  lands   within 
the  territory  formerly  «;alled  New  Plymouth,  and  three 
at  the  lea.st,  of  the    inhabitants  or   pn.j.rietors  of  land 
withm    the   territory    formerly    called  the  Provim^e  of 
Mame,  and  nne,  at  the  le  -st,  of  the  inhabitants  or  propri- 
etors of  land  within    the   terriU>ry  lying  between    the 
nvei  of  Siigiwlahw;k  and  Nova  Scotia. 

That  there  is  iK)wer  given  t.)  the  Governor  and  Coua- 
c.l  to  impose  tuxes,  &c,  upon  the  estHti>«  and  persons  of 
the  inhabitants  or  proprietors  of  the  said  Pn>viiK,'e. 

That  in  the  said  Charter  is  the  following  proviso:  pro- 
vided  that  It  shall  and  may  Ix'  lawful  for  the  sai.l  Gov- 
ernor  ...d  General  Assembly,  to  make  or  p,u,s  any  grant 
of  lands  lying  within  the  Unrnda  of  the  eolnn.es  lorm- 
erly  called  the  col.mies  of  the  Massac husett.s  B^y  and 
New  Plymouth,  and  Pi.unee  of  Maine,  in  such  manner 
m  heretofore  they  might  have  done,  bwutueof  an/ 
former  Char'^  or  IcttexB  pat^int,  which  graute  mC  li^jOd 


TH£  XING's   PRSROGATIVE  ABROAD.  109 

Within  the  houndH  aforesaid,  we  do  hereby  will  and  or- 
dain to  bo,  and  c.  jtinue  forever,  in  full  force  and  effect 
without  our  further  approbation  and  consent ;    and   so 
as,  ueverthele.ss,  and  it  is  our  rt>yal  will  and  pleasure 
that  no  ^.rant  or  grants  of  any  lands  lying  or  extending 
from  the  rn  er  of  Sagadahock  to  the  Gulf  of  St    Law 
rence  and  Canada  Rivers,  and  to  the  main  sea  north- 
ward and  eastward,  to  be  made  or  passed  by  the  Gov- 
ernor and  General  Assembly  of  our  said  Provin  ,>  be  of 
any  force,  validity  or  effect,  until  we,  our  heirs  and  sue- 
ce.,s„rs,  shall  have  .signified  our  or  their  approbation  of 
the  same. 

That  within  the  tract  of  land  lying  between  St  Croix 
and    Saga.lahc^k,    is  a  place   called    Pemaquid,   where 
there  ^VHs  a  fort  built  by  Ja„»es,  then  Duke  of  York    to 
whom    that    tract    Mas  granted  by    King   Charles  the 
.VH-ond,   in   1<;(;4.  in  onl.r  to  pr^wrve  it  from  the  In- 
<l'ans,     but    the    Indians    afte.-wards,  u.s.ist^d     bv    the 
i^rencl,   made  an   incursion  int.,  the  .said  tract  of  la,«l 
and  not  only  <l.moliHhed  the  said  fort,  but  al..o,  destroyed' 
many  families,  then  in  a  rtouri.shingcomlition,  which  had 
be...  settled  there  under  ihe  said  grant  to  the  Duke  of 

That  so<,n  after  the  said  Charter  w.s  grantcMl,  Sir  Wil- 
liam Ibipps  was  apj,.i„ted   Governor  of  the  Ma.ssachu- 
Hot  ..  „,  .vh..so  tin...  the  H,.id  fort   of  P..,„aq,.id  ,.,,  ,,. 
*«"'^  -«.H.h  was  don<.  for  a  .show  of  their  government 
over  that   tr.-t  of  country,   but  no  .ottlen.ent  of  fa," 
-s   w...  „„,,.  H..rein,  and  the  ,.lac«>  U-ing  in  a  naKed 
and  ,ie(.„,-eless  condition,  it  was.  i„    um.  t,vkon  bv  the 
'     ."  i.!ol..hed  the  sa,d  tort  at  JVmaqui.l.  and 
^  1     nch  Kmg  put  tl.tt  part  of  U,e  ccMiutry  under  tiie 


- :  '  ( 

III 


im. 


no 


OPINIONS  OF  EMINENT  LAWYERS. 


governnient  of  his  Governor  of  Nova  Scotia  where  his 
next  garrison  then  was,  and  it  re.naine.l  in  possession  of 
the  l^rench.  aft^r  the  ])eace  of  Reswick. 

That  the  French,  as  «  testimony  of  their  ri-ht  to  and 
possession  of,  the  said  tract,  huilt  a  church  at  the  river 
Kennel)eck  or  Sji^ratiai,,^.]^ 

That  Joseph  Dndley  Esq.,  (then  Governor  of  the 
Ma.ssachnsetts,)  several  times,  hy  ..rders  from  Her  then 
Majesty,  pressed  the  Honse  of  Representatives  to  re- 
bn.ld  the  fort  and  restore  the  fortifications  at  Pema- 
quid;  npon  which  the  H..nse  of  Representatives  in 
the.r  address  to  the  Queen,  expre.ssed  themselves  as 
lollows  : 

"As  to  the  building  a  fort  at   Pema.piid.  the  expenses 
already  made  (m  onr  fortresses,  garri.sons.  marcn.s  and 
guards  hy  sea,  amounting  to  more  than  eij^htv  thousand 
pounds.  H  ^.reat  part  whereof  is  in  .rrcar  and  unpai.l  he- 
^>K^es  the  daily  growing  charge    for  our   neces.sarv  de- 
fence, an<l  the  ,,rosen,tion  of  the  war.  is  Invome  almost 
.n.supportaI.le.  and  has  I.n.ught  us  .u.d.r  vcrv  distressing 
circumstances;   and  were  the  huiidinir  n   fort  at  Pema- 
quid  superad.le.1  thereto,  it  woui.l  nwuh-r  the  charge  far 
beyon.l  our  ability,  a.nl,  we  humbly  con.viv,.,  would  be 
no  security  to  our  frontiers,  or  bridle  to  the  Indians   the 
situatum  tln.reof  hn„g  „,  „„„.,,  „„j   „,•  j,,,.j,.  ,„.,,„ 

'■'""''  ""•'  "l>"anl^  of  one   hundred  mil.-s  .listant  from 
any  part  of  this  Provi,,.-..     .t  pre.M.M,t   ii,hal,it<>d   l.v  the 
Knglish,  an.l  of  |;,t!.  ,„■  „„  advant......  .,.  this  Province  • 

although  the  expense  in  budding  and  .M-ppo.tn-r  the  late' 
'••••fat    Pema.p.id,   .-ost    not   less   thantwen.v  fho.Hand 

pounds,  which  was  not   l,>st    hv  anv  nede,.t  of  the  gov- 
ernment, ,t  being  fully  supplied  for  the  defence  and  sup- 


THE  KINGS    PREKOGATIVE  ABROAD.     .  m 

port  thereof;  but  by  the  cowardice  or  treachery  of  the 
^en.o,,,nand.„g  officer  upon  the  pbce,  .ho 'received 
ins  trial,  but  Avas  acquitted." 

.on  „  ,1,,  French  to  the  je„r  1710.  when  i,  „«  re- 
"keu  hy  G.ne„u  Nioh.,l,„„  with  ,„,„e  ,r«,p.  .,,„  n.^ 

hv'H;l'i!;"'r'  ■^''""■'  «'"'--"-"f  ^^^  Ma„.<.h„«.tt», 

1.V  H-  l«te  Ma,e..t.V,  „„ler,,  ,ec„„„„e„d«l  t„  the  House 
the  bu,l,l„,g  ,,„„„  fort  „,„  ,^,„      ,^,  -^    ^or 

greater  ...„n,,  ,o  tl,..ir  ,K,„.ie,,,  up.,,,  „,,.„„ 'the  lid 

"  That,  „p„„  a  further  c<,„»i,lerati„„  „1  Hi»  Excellon- 

,™  ih  1  " "'"  '""■'•'■  '"■  •■"' ■'■  "'"'•  ">""■*■- 

ir.g   the  li.w   eircum«tiii,ce»  i,f  this  Pr„       .„         i  ., 

'r:'^/'"- "- --i .,th,::m;\Ct'f:t 

ct,  here  are  „,>t  al.le  ,„  e,„„e  i„l„  ,„  g„,,  ,  .,  „_  '^ 
the  refc,„l,,,„g  „,,  ,;„,  at  Pe.ua,,,!,,  Zu  ,.,  a,„   ,  , 

great  .en„„v    „,  the  lives  au.l  estate  uf  ili,  Maj.'t" 

,        " "'   ''-^    '■'•■'•-•"  'l''«t  l'e..u.|uid  i,  a,  »,  great  a 

'""""■","■ ,'""■ '•-'«li-hse„le,„eu.s;  hut  that    .,U 

>"-.    what  shall  1.  ,„„,.,„„,.,  ,„,  „„.  ,  ;     '» 

.erv„tH,„  „r  the    g„ve e„t.    e,  „  e,  „s '       1       .  [ 

l-yal  »u„jeets.  shall  readil,  eheerlull.   cutuphVi 


1 1 


;i 


112 


OPINIONS  OF  EMINENT  LAWVEH8. 


'  i 


That  this  tract  of  land,  whi^h  is  re{  iited  part  of  Nova 
Scotia,  did  thus  lie  waste  and  uninhabited,  though  capa- 
ble of  very  great  improvements,  and  by  the  .situation 
thereof,  the  lands  in  those  parts,  with  respect  to  their 
produce,  harbors  and  fisheries,  are  of  more  value  than 
any  others  in  that  part  of  America,  and  Avould  produce 
considerable  quit  -"rte,  if  the  right  thereto  is   in  the 
Crown,  so  that  the  title  to  the  government,  as  well  as  to 
the  property  in  the  soil,  is  of  very  great  consequence  ; 
and  therefore,  upon  a  representation  tt)  His  Majesty  in 
Council,  some   Protestants  from  Ireland  and  from  the 
Palatinate,  were  desirous  to  settle  upon  the  said  tract 
of  land,  lying  between  the  rivers  St.  Croix  and  Kenne- 
beck  (Sagadahock),  extending  about  one   hundred  and 
eighty  miles  in  length  on  the  sea-coast,  Hi«   Majesty  di- 
rected that  his  surveyor  of  the  lands  of  Nova  Scotia 
should    assign   them  lands,    according  to   their   desire, 
which  he  accordingly  did  nYnnit  a  year  ago,  and  sieveral 
families  are   now  settled    thereon,  and  improving   the 
same,  which  were  afterwards  to  be  ratified  to  them. 

That  the  inhabitants  of  MaHsachu?«^tts  Bay,  who,  till 
this  time,  always  neglected  the  said  tract  of  land,  as 
very  inconsiderable,  and  not  worth  their  notice,  claim  not 
only  a  right  to  the  government,  but  also,  to  the  lands 
in  the  said  trsict,  and  the  govornnvent  there  threatens  to 
drive  the  families  (now  settled  there,)  immediately  out 
of  the  same. 

That  the  inhabitHnt*^  of  the  Mas.saiihuseJts  do  not  now 
pretend  any  right  to  that  part  called  Nova  J^cotia,  which 
is  likewise  included  in  their  Charter,  and  the  .siid  tract 
of  land  is  reputed  piu-t  of  Nova  Scotia,  though  it  is  differ- 
ently descrilxnl  in  the  Charter. 

Upon  this  state  vi  the  ea«e,  thft  questions  pro|)osed  to 


# 


113 


THE  king's    prerogative  ABROAD 

"-tor  .,e.L  .™et:;irn;;"£ir;T"- 

prove  «,„  .„„,,,  ,„,,^j  tht  i  h1  r.r   ™" 

men.  a,„>  „,,„e  ,.„„.  t^e,  had  ull;  f  LJ  tt^n™- 
now  have  to  *he  lands  l  ^"arter,  and 

and    wheLr    M         '"'"""«  "'«-■<"".   becnn.e  vacated  ; 

landJw^^  .rrrrr "' "'"  '™^"  -"  ""> 

«^ui,  arc  not  absolute  v  revesterl  in  ih    r- 

■^-a,r;r:;-r:':;^;:3r*'<-- 

JlWK.id  petitidii  of  Sir  liil,v»  l.,i  i'      . 

ror.h,  tl,«t  ,l,e  ..aid  Can.    „  T  t'  ,""    ""'"'^'  ^'' 

"-  late  «.-and-,;.t,.e,:     I'  ;;'™'   ■"^I,"'^'  '-■"«"'- 
joined  ,n  ,naki,„  ,eve,.a,  ^Z^^'^iT  T'' 

northern,,,,,,,  ,,„.(  „,■  ,■„,  V  ''■ '^"■'"'"'K  l™n  the 
«'-  »aid  river  K,,,,^.  '  l"""'  '  ""  """'  "'''™  "'' 
-o,,!,  .,„  „a„h  .ide  I^     he'     •",'■'""-'  " ''"  """  "'« 

-ex.e,,di,,..,,;u::,';:;.;;:::-:"V'''^ -"'■"'' 

tl'e  na„,e  „!■  a  ,s„,„„e    „l       I  '      "■•  «»"«i ''v 

■: ---o„.h  ::•:::'::.;--,:■--- 

creeks,  (,ones,wo<,,is,„„|,.,u.ww I  -i"   ponds, 

'.«».nda„„^„ai,„.:r:^;'-— ,_^v. 


f-    J 


114 


OPINIONS  OF  EMINENT  LAWVEHS. 


* 


both  sides  the  said   river  Kennebeck,  namely,  from  the 
lower  end  of  a  certain  place  called  Neaguaiukot,  which 
IS  a  little  behnv  some  islands  in   the  said  river  Kenne- 
beck, and  so  going  up  the  river  lour  miles  alwve  the 
falls    of  Tokonock.    and   reaching    ten    miles    into    the 
woods  on  both  sides  of  the   said  river  Kennebeck,  with 
all  woods,   underwoods,  mines,  minerals  and  privileges 
thereunto  belonging  ;  and  also,  free  passage  foi  vesselr  -p 
and  down  the  said   river  Kennebeck.  and  nV    "iat  tract 
of  land  lying  near  or  about    Waksrong.  with  all  rights 
and  privileges  thc'reunto  belonging  ;  and   al'  that  tract 
of  land  lying  near  or  about  Agnascorongau,  adjoining  to 
Kennebeck   River  on  the  north-west,  and  so  south-west 
to  the  southermnost  island  of  NeguomkaA".  and  six  miles 
from  Toconock  falls  north-eastward,  and  for  fifteen  miles 
all  along  from   the  said  river  Ke.  lebei-k  into  the  main 
land  south-eastward,  together  witl   all  rights  and  privi- 
leges, as  well     y  water  as  ],y  lan.l.   thereto  behmging  ; 
and  al  thac   island,  lyiug  on  the  east  side  of  the  said 
river  Kennebeck.  called   Arrowsick  or  Eichards  Island, 
and    all    ho;..-ies,    woods,    imderwoods.    jxmds,    waters 
swamps,  mines  and   profits  thereunto  belonging,  and  all 
that   place   or  seat  ol'  ground,  called  Negwassev,  lying 
between  the  Ixiunds  of  Sagadahock  River  on  the  west- 
ern side,  and  Sheepscott  River  on  the  eastern  side,  one 
great  ])<md  on  the  north  side,  and  Negwassev  River  on 
the  south-west  side,  with  Wi^waui  or  Indian  House  ;  and 
all  that  other  house  wbcrcin  James  Cole  dwelt,  with  all 
out-houses  and   indo.sed  grounds,  and  all   waste  ground 
bounded  as  fbUoweth.  viz:  SagadaluM-k  River  on  the  west 
or  westerly,  and  so   io   Merry-Meeting  (-reek,  andfrom 
thence  to  the  northward  eiwjit   miles  up  into  tbo  eoun- 
try,  and  from  thence  and  easterly  to  8hee{)scott  River, 


THE  king's   prerogative  ABROAD.  US 

and  from   thence  to  a  place  called   Tepenegine,  south- 
erly and  innn  thence  all  along  Monswaggen  Bay.   and 
so  along  to  liu...seck,  and  irom  Ru..eck  to  Tirseck,  and 
from  thence   to    Merry-Meeting,   all  along   Sagadahock 
Kiver   as    atoresaid,    together   with    all    rivers,    ponds 
brooks,  eon,  s,  inlets,  meadows,  underwoods,  mines  and 
all  other  pnvileges,  advantages  and  profits,  as  by  au- 
thentic  copies  of  the  original   deeds  of  purchase,  ac- 
knowledged In-  the  said  Indian  Sagamores,  and  entered 
and  recorded  at  Boston,  in  New  >:„gland  aforesaid  (ac- 
cording to  the  laws  of  the  said  Province.)  then  in  the 
petitioners  custody,  and  ready  to  be  produced,  might 
appear.  '        e  *" 

That  the  said  Thomas  Lake  an.l  Thomas  C'.rk  bein^ 
equ^dly  interested  in  and  entitled  as  tenants  in  common 
to  the  said  huul  and  premises,  did,  in  or  about  the  year 
16o(),  aiid  from  and  after  that  time,  erect  and  build 
^everr  -ouses  and  out-houses,  and  several  saw-mills  on 
the  saio  Arrowsick  Island,  Negwassey.  and  other  places 
on  the  ina.n  land  between  the  said  Kennebeck  Biv^r 
and  the  river  Penobscott,  and  cleared  and  made  r  • 

r  "r  T-   1"'^"''  '-^ ---raged  many  famu.. 

to  come  and   inhab.t   the  same,  and  had  several  large 

arms,   whereon  were   very  great  stocks  of  cattle,  a- 

bunt  and  made  several  grist-mills,  bake-houses    smiths' 

KuM  tl  c  u  with  ,he   p.'od.u-e  of  ,h,  said  premises,  for 
«os  on  a.ci  other  parts,  wherein  tlu.  said  Thomas  Lake 

amrhomasClark  expended  between -.ni,..,enu.:n 
oi  twenty  thousand  pounds  ,,,,,1  „,„,„,,., 

That  la  the  years  1G73,  1074  and  1075.  the  General 


'iii 


:i 


f  i;t 


116 


OPINIONS  OF  EMINENT  LAWYERS. 


H  3  fc 


Court,  a^emblcd  at  Bo.ston,  for  ^ro^  eminent  of  the  Pro- 
vince of  the  Massacliu^ett.   liay,  in  New   England,  did 
order  that  tlie  said  ea.^tern  part.s  within  tlieir  jurisdic- 
tion, whereof  the  afore-^aid  lands  and  premi.ses  are  part, 
should  be  callo.l  Devonshire,  and  bv  reason  of  the  great 
distance  of  those  j^arts  Irom  Boston,  afore.said,  did  em- 
power the  Governor  of  the  said    Province,   with   four 
more  of  the  assistants  of  the  said  General  Court,  to  ap- 
point proper  and  fit  persons   to   be    Commissioners  to 
hold   a  County  Court  and  Courts,  for  ending  of  small 
causes  ;  and  that  such  Commissioners  should  have  macr- 
istraticpl  power  to  punish  criminal  offences,   to  marry 
and  to  .'^ettlo  tlie  militia  at  Pemafpiid,  Cape  Nawaggon, 
Kennebeck,   Negwassey,  Sagadahock,   Damarillis  Cove! 
Monhegin,  and  other  places  within  the  si. id  county  of 
Devon,  and  to  administer  oaths  to  constables  and  other 
officers,  and  to  exerci.se  all  neces.wy  jurisdiction,  both 
military  and  civil,  for  the   better  government  and  pro- 
tection of  the  said  county  of  Devon,  within  the  line  of 
their   patent ;    ar  |  that    ^\e   ..aid    Thomas    Lake  and 
Thomas  Clark  were  appointed  Commissioners,  with  oth- 
ers, fo"  the  purposes  aforesaid,  as  by  authentic   copies 
of  the  orders  of  the  sai.l  General    Court,  then  in  the 
petitioners  custod-,  ready  to  be  prixluced,  migjit  appear. 
That  in  the  latter  end  of  the  year  K)?.',,  or  in  the  be- 
ginning of  the  year  KiVC  a  war  bi-oke  out  with  the  In^ 
dians,  who  invaded  the  said  cority  of  Devon,  and  killed 
the  .said  Thomas    Lake,   in  defence  of   the  .sai.l    .^t^ttle^ 
ments;  and  afterwards  burnt,  ruined  or  destroyed  all,  or 
the  greatest  part  of  the  .s.id  .settlements,  and  killed  or 
drov.  away  their  tenants  and  cattle  therefrom. 

That  the  said  Major  Thomas  Clark,  escaping  the  In- 
diiuiM,  .survived  the  said  war,  and  afterward.s returned  to 


TH.    IlNG's  PmRHOOATIVI  illlOiD.  Hy 

-aid  land,,  and  witl,  the  oo^urrence  and  »«i.,„„cc  of 
.l.c.  w,d,„v  „,  ,he  ™w  Thoma,  Lake,  the  petitioner's  la.e 

resettle  the  prem,«,,  and  to  repair  and  rebuild  the  seve- 
ral .ett  eraenb  ruined  or  de,troved  bv  the  Indian,  a« 
.-.lorosud,  and  pr«,eeded  therein  until  .uch  time  a.  a 
.e,v  war  broke  out  with  the  Indian.,  who  .again  .nvaded 
bu  nt,  r„„,ed,  or  de,tro,v.d  all  ™,,1,,  their  new  work,  and 
.ee„„„,,,     a  killed  .-  drove  away  their  tenan.  .  ,d 

t^l  "        li'f         '"'™'''''  ""<"•  *''>'■'='■  "°  f-^t''«'-  »t- 
"P^      uld  l«  made  to  re^ttlc  the  «vme,  bv  re«,n  of 
h.  .„..  :..ut  ,ne„r,ion»  of  U,e  Indians,  and  of  the  con- 
fnued  war.  or  ho,tililie.,,  between  them  an,l  the  E„gli,h 
m  thn«e  p.art»,  until  the  peace  wa«  concluded  at  Utrecht- 
"l""  wluch    h„,,tili,i„,  ee„..inK,  the  petitioner,  in  con 
unc  .„,,  w„    ,he,.aid  Jo,i„bWalcot. and. Lionel  Hutoh- 
.».,  dKl  alter  the  «id  peace  of  U,„.cht.  in  the  vcar 
1   14,  .-en.l  over  Iron,  hen,  e  Mr.  John  Watt.,,  a  ver,  ca,-c. 
and  understanding  ,.r.on,   to  Arrow,ick  I,l„„d     nd 
<i^  other  prcnnse,,  ,no„lcr  to  ,-e,cttlc  ,l,e«ame,  and  did 
^mpowcr   , unto  .settle  there  one  hundred  fanilie,  ■  and 

ol::  U  ■■  ?"",  ""'■  '"-'""'"^^y'  ^  -er  for  that  pn" 
r    ^'^ '"""•""'■>•■  "'i  ««  pHitioner  did  advance  to 

"P«a,  J  ,  toward.  In.,  p„,,„,H„„  „f  „,,.  ^.^ 
pende,,,,,.  hn„,  ,hc  «,id  Mr.  Wa,„,  in  n.aki^.g^ch    L 
tended  .Clement,.  exclu.,ivc  of  what  the  J,  vlZl 
H"t<-lo„,on  a  ,d  Mr.  Walcot  did  advance  tbr  that 
P«-;  and  the  ., aid  Mr.  VVa,,.,  wa,  verv  inJu,,      u     „ 

,.  «.vera    , Clement,  and  buildings,  and  „,akig 
.;,;:  """-■""»-»,  ana  o,herimp„,vcn,e„t,.  for  cn„^ 
>e,u  .ncc  and  defence  again,,  i„,„|„  ,.^,„  „,^  i„,,;„, 
u.d  l:ad  settle.!  tl.e«  ^^  „f  i,r^,.Zt 


i  I 


lit 


)     »i 


11 


118 


OPINIONS  OP  EMINENT  LAWYERS. 


died  before  he  had  completed  all  the  intended  settle- 
ments ;  upon  who.se  death  Mr.  Penhallow.  marrying  his 
widow,  li\<(l  there,  and  looked   after  and  took  care  of 
the  said  settlements,  in  the  Itcst  manner  he  could,  till  a 
new  war  broke  out  with   the  Indians,    in  or  about  the 
year  1722    or    1723,   when  the   Indians  asrain    invaded 
those  partH,  and  came  down  in  a  great  body,  and  burnt, 
mined,  or    destroyed   all  su.h  mills,  and  .settlements,  as 
the  said  Mr.  Watts  had  made,  except  a  fortified  house, 
which  the  said  Mr.  Watts  had  caused  to  be  built  «m  the 
Island  of  Arrt)wslck,  for  protection  against  them,  which, 
tt)gether  with  .some  other  liouses  which   were  under  the 
defence  thereof  the  said  Indians  several  times  attacked, 
and  atteni|)ted  also  to  burn  or  desfioybut  were  repulsed 
and  Ibrced   tu  retire   fnmi  the  same,  and    wiiich  hou.ses 
•u-e  now  standing  ;  but  tiie  Indians  killed  or  drove  away 
their  cattle  from  thence,  and  also  the  tenants  and  cattle, 
from  their  other  .M-Uiements 

That  since  this  lasi  war  cndctl,  the  petitioner,  with  the 
i^aid  Colonel  Jiutchinson  and  .Mr,  \\alcot.  were  endeav- 
oring to  repair  and  resettle  the  piciui.ses.  and  to  encour- 
age several  fanulies  to  go  and  settle  tlier«(>n;  but  were 
preventc-d  by  Colonel  Dunbar,  Surveyor-Cieneral  of  His 
Majests^  w(kk1s,  in  America,  who  pretended  ,«ome  in- 
struction>.  (»r  a  connni.ssion  from  His  Majestv.  to  make 
st'ttlemints  wiiliin  the  limits  of  their  LiihU.  ami  in  other 
places  in  th«'  ea>leiii  p.iils,  in  the  l*ro\  inee  -f  Milshu- 
eiiusetts,  and  to  ereit  llie  -,nne  into  a  separate  govem- 
iiieiil,  r  oin  tlat  rroviiiee,  although  the  .iiii'-  is  include*! 
in  the  Charter  granted  lo  t  he  subjeels  ul  ilie  -,iid  Pro- 
vince: and  notwithstanding  the  .-aid  Colonel  hiinbnr 
hath,  since  hisunival  there,  iiei-n  waited  upon  nn  i  made 
fully  aci|uainted,   by   the  said  Colonel  IluUdiiu>un,   with 


THE  king's   prerogative  ABROAD.  Hg 

the  matters  aforesaid,  and  with  his,  Mr.  Walcot's  and 
the  petitioner's  title  to  tleir  said  lan.ls  and  promises 
yet  he  insists,  that  he  shall  be  obliged  to  enter  upon 
and  make  settlements  therein,  unless  His  Majesty  shall 
be  graciously  pleased  to  forbid  or  restrain  him  from  so 
doing. 

That  Du2i!>ar  s  pretensions  have  not  only  discouraged 
all  persons  ihnn  going  to  settle  the  premises,  but  have 
ternhed  such  tenants  as  the  petitioner  and  the  said 
Colonel  Hutchinson  and  A:,-.  Walct  have  there,  from 
enlargnig  or  improving  their  settlements  ;  all  which  the 
petitioner  apprehended  to  be  his  duty  humbly  to  repre- 
sent to  His  Majesty. 

That  the  petitio,>er.  tl»e  said  Colonel  Hutchins.  n  and 
Mr.  ^\alcot,  being  entitled  to  the  said  premises,  by  pur- 
chase from  the   Indian  Sagamores  or  Sachems,  allowed 
of  and  approved  by  the  General  Vuurt,  li.r  the  govern- 
ment of  the  Massachusetts  Province,  and  confirmed  by 
the  several  Charters  granted  to  the  subjects  of  the  s„id 
Provm.  e.  an.l  they  an.l  their  ancestors  having  end-av- 
ored,  all  thaf  in  them  lay,  to  settle  the  premises  at  su<-h 
Rroat  pnms  and  expense,  and  having,  from  time  to  time 
sustained  such  gn.,»t  los.scs  th..,..i„,  as  aforesaid,  and   Ih>- 
<ng    resolved    to  complete   the    same  with    all    ,.,.ssible 
HIH'ed.wMch   they  humbly  apprehend  will    Ih>  of  great 
«;iv»ntage  to  the  tra,le  of  this  king.lom  ;  the  rK'titioner 

I  HTeloic,  M,  behalf  .,f  b.mseir.  ,Mid  of  the  .said  ('olonei 
I  M.cbuison  and  Mr  Walcot,  mo.t  In.mblv  praved  His 
M".|.-sty  to  seM.1  tl...  necessary  ordcM  or  instructions  to 
th.'Ha,dC..loncl|),„,bar.not  to  intermeddle  or  molest 
t be  pHitione,  an.l  the  said  ( 'olon..!  Mut.hinson  and  Mr 
^^..l.•..t.  intbes.ud  premises,  to  which  tbev  are  entitled 
.w  aforesaid  ;  and    tl.at   the  said  Colonel  Dunbar  do  not 


- 1. 


. ! 


lao 


optMOKs  or  KMiNsar  lawykrs. 


I  ■< 


w* 


li 


obstruct  or  disturb  thein,  their  tenants  and  agents,  in 
carrying  on  their  settlementa,  on  any  pretense  whatso- 
evfr,  and  that  the  petitioner  and  the  said  Colonel 
Hutchinson  and  Mr.  Walcot,  imy  »,e  quieted  in  the  pos- 
session there»)f,  under  the  government  of  His  Majesty's 
Province  of  the  Massachusetts,  and  may  be  at  lib- 
erty to  proceed  in  settling  ihe  premises,  without  uio- 
letitaticMi. 

The  said  petition  of  Samiiel  Waldo,  on  behalf  of  Eli- 
sha  Cook,  Esq.,  and  others,  sets  forth,  that  the  Council 
established  at  Ply»K>uth,  ibr  the  planting,  ruling,  order- 
ing  and  governing  New  EngL'nd,  in  America,  by  deed- 
poll,  under  their  connnon  seal,  and  signed  by   Uol)ert, 
then  Earl  of  Warwick,  did  grant,  bargain,  sell,  ejileoff, 
allot,  a.s.-,ign    and    ctmlirm   unto  Johji  Beauchamp   and 
Ta»>  na.s  Leveret,  their  lieirs,  associates,  and  assigns,  all 
and  singular,  th(»He  binds,  tenements,  and  hereditameiitri 
whatsoever,    with    the   ap^iur tenant's  there.. f,  in  New 
England,  aJbresaid,  which    »i-e  ^ituate,  lying  and  being 
within  or  lietweeu  a  place  there,  c<>nm»only  lalled  or 
known  by  the  jMuue  o<'  Muncongus,  Umaids  the  south 
or  Konth-west.  m.d  a  »tmiglit  line  exteiuiing  from  tlkence 
direcUy  ten  le^igut's  upinU)  the  main  land  and  continent, 
t4>wards  the  great  sea,  commonly  called  the  South  Sea, 
and  the  utmost  limit*  of  the  >.pa.e  to  U^i  h-agues  on  th« 

norlli-north-eastofariverinN.w  England, arwivs<iid,conw 
monly  cuUcd  Penob.'^cott,  towanis  the  noiih  and  north- 
east an<l  the  great  sru,  connnonly  called  the  Westi-rn 
(X-ean,t«. wards  the  I^kst.iuid  a  straight  and  a  d  re.  t  line 
extending  from  the  m..st  wtiatern  juiH  and  poii.i  „f  t!„. 
said  stra.-ht  line,  which  extends  lioji.  M.iscongus  albre- 
said.  t..w,uxh  the  South  Sea,  to  tiM>  uttoiUM^t  northern 
hunts  of  the  ^nid  ten  Juu^uet*  on  the  north  hide  of  thy 


THE  king's;  PREROGATIVE  ABROAD.  121 

8aid  river  of  Penobsoott  towards  the  we«t.  and  all  Iand« 
grounds,  woo,]s,   soils,  rivers,  waters,  fishings,  heredita- 
ments,  profits,  oonnno,lities,  privileges,  franchises,  and 
emoluments,  whatsoever,  situate.  Ivingand  being,  arising 
happen.ng  or  renewing  within   the  limits  and   bounds 
aforesaul,  or  any  of  then,,  together  w.h  all  Island,  that 
l-.e  and  be  within  the  space  of  three  n.ilesof  the  said  lands 
and  premi.ses.  ,>r   any   of  thc-m.  to  have  an<l  to  hold,  all 
and  singular,  the  said   land<,  ten,.ments.    here<litainents 
and  prem,se.s,    whatsoever,  with  the  appurtenances    and 
every  part  and  parcel  thereof  unto  the  said  John  Beau- 
champ,  and  Thomas  [..-erct    their  heirs,  associates  and 
assigns.   tor.vcr,  to  be  bolden  of  the  then  King's  most  ex- 
relh.ntMa,,esty,  ins  h..i,.s  ,„.,.,,,,,,,. ,,,,.,,,,,,j^^^^ 
of   Kast  (.rcnwich,  by  f,.,,Hy  only,  and  not  in  capite.nor 
by  kn.ghts  service,  yielding  and   paying  unto  his  said 
Majesty.   h,s  he.rs  and   succes,.ors,   the    fifth   part    of  all 

«"ch   ore  of  .old   and  .ilvcr.  as  should  be  gotten  and  Ob- 
t«nie(l  )M  or  upoi,  tli.>  premises. 

That,  under  this,. rant,  the  said  John  Meaudunnp  and 
Thomas  I  .vere.  eufcre,!  on.  .„.l  „,.re  actuallv  possessed 
.n  the.r  den.esne.  as  of  fee  of  au.l  in.  th,.  s.id  tract  of 

'■•'"•^'"•'•^'•'y -"'veye,!  to  then.,   an.l  tnade  verv  consid. 
orabiesettlementsandimproven.ents  (h.reou  ;  but  on  the 

>n..k,ngout  ofthegreaf  war  with  t!,..  Indians  i„  lti75 
thcrsawlsHthMncn...  »...c,hcr  with  all  that  part  of  the' 
-.ntry,  were  d.Mroved,  and  winch  w,,,-  hel.l  till  the 
Wo     the  feat,    o,    Ttrecht    sav„„   ,     „„„    ,,,,^ 

"T        r  •'■■^^   ♦'""♦•••"•■   —Mtenu,:. .therein, 

out  as  the  same  were    verv    sli.,i»    .,,.1 

*'  i.\    shoit    and  precarious    there 

was  no  po.«sd.ilitv  ofMtfo,, ,!.♦;,„.  .,„-       M>  , 

K,ch  intervals      "  "' ' '"-  "^  -'"-— ts   dunn« 

That    the   Haul    Thon.as    I  ..eret    survived  t! nd 


t     ' 


4 


lit 


It 


122 


OPINIONS    OF  EMINENT    LAWYERS. 


•1 


if  ■ 


John  Beauchamp,  by  virtue  Avhereof  he  became  solely 
entitled  to  the  l)ene(it  of  the  said  ^^rant  ;  and  on  his  de- 
cease, all  the  said  lands  and  premises  became  vested  in 
the  said  John  Leveret,  scjn  of  the  said  Thomas  Leveret, 
the  survivin«r  grantee,  to  whom  the  petitioner,  Mary 
Rogers,  is  heir  at  law. 

That  Sir  William  Phi])ps,  then  Governor  of  New  Eng- 
land, not  knowing,    as  it  is  presiuned,  of  the  said  Ji.hu 
Leverets  right  to  the  said  land,  treated  and  agreed  with 
Miidakowando,  who  was  .Sagamore,  or  Chief  Sachem,    r 
King,  of  the  Penobscott  Indians,  lor  the  }Miicliase  thereof, 
and  accordingly  the  .said  ALidakowando,  tor  a  valuable 
consideration,  by    his  dccd-]).)ll,   dated   the  SUh  of  May, 
IGOl,  granted.  relea.sed,  confirmed,  enfeoffed,  bargained 
and  sold  the  .said  lands  and  jtreinises.to  tin'  .slid  Sir  Wil- 
liam Phipps  in  fee,  which  deed  was  afterwards,  viz:   the 
10th  of  May,  It;;t4,  per.-^onally  acknowledged  by  the  .said 
Madakowando.  belbre  two  of  the  members  of  his   then 
Majesty's    (Council  of  Ma.s.siirbusel  ts  J'rovince,    and  ha.s 
been  since  acknowl.'dged  and    allowed   of  ly    the  Chief 
Sachems  of  the  Indians,  and  their  trilies,  and  particular- 
ly was  diown  to.  and  acknowledged,  and  allowed  of,  by 
them,  so  lately  as   the  ttli  day   of  August,  172(;. 

That  after  the  ])eaci-of  i;tre<'ht  whiihwas  al.so  atten- 
ded by  a  |)ea(v  with  th<-  eastern  ludi.iusof  New  Kiiglaiid, 
the  said  John  Leveret  loiuied  to  him.Mlf  an  intention  of 
resettling  the  said  land,  with  all  po>-.ible  vigor  iiiid  diH- 
pMtcli:  but,  in  n>ir;inl,  idl  the  old  settlements  were  de- 
molished ;  apprehendnig  the  uiidertal  iig  l<io  ext.  :<  =ve 
for  a  single  person,  bein\it.Ml  and  auiced  v  ili  several 
gentlemen  of  considerable  sul»stance  and  tbrtune.  to  a,s- 
."ociate  and  join  with  hini  therein  .  ,ind  having  brought 
hij*  de,sigu8   to  a  degree   of  maturity,    in  the  \ear  iTl'J, 


THE  KtWs    prerogative  ABROAD.  123 

that  nothing  „„ght  He  in  his  way,  and  to  remove  all  pos- 
H.hle  obstructions,  and,  as  an  additional  strength  to,  and 
.onhnnatK.n  of  his  title,    and  thereby  the  more  to  en- 
courage h.s  associates  to  carry  on  the  said  settlements 
w,thsp,r,t  and  vigor,  the  said  John  Leveret  treated  and 
a^^reed  w.th  Sponger  Phipps,  Esc,.,  adopted  son  and  heir, 
and  also  dev.see  of  the  said  Sir  Wm.  Phipps.  to  purchase 
out  h,s  interest  in  th.  <ai,l  prenxises  ;  and.  accordingly, 
the  sa.d  Spencer  Pldpps.  by  his  deed-poll,  endorsed  on 
the  saul  Indian  ,Mu-<'ha.>.e-deed.  and  hearing  date  the  13th 
day  of  August.  1710.  for  a  full  and  valuable  consideration 
re  eased,    assigned,  couveyed   and  confirmed  to  the  said 
.b.h..  Leveret,  as  wll  the  sai.I  ,leed  from  the  said  Mada- 
kowando  to  the   said  Sir  Wm.  Phipp.,    ,,  ,,,„    ,„    ^^^^ 
tracts  and  parcels  of  land  thereby  granted  and  conveyed 
t.  tlu.  sai.l  Sir  Wn..  Phipps.  and  which  are  mentioned 
n.     I.e  sa.d  dee.l.  to  be  then  in  the  seisin  and  po.ssession 
<>    the  sa.d  Leveret,  his  heirs    and    assigns,   to   his   and 
tlieir  only  proper  us,>  and  benefit,  lorever. 

That  the  said  John  Leveret  having  thus  a  secare  title 
m  hnn  to  the  ..aid  tract  of  land.  l>oth  by  gran,  from  the 
1  n.wn,  and  by  purcha.se  fron,  the  lp,;iM„..,  which  is  al- 
ways held  inviolable  in  these  paHs,  and  having  associa- 
ted several  enth-M.-n  of  ,.o„siderabb  fortune  to  join 
wfbium.  cttlinir  and  improving  these  laud,  la-  the 
"■^\*"-  ""-     '•      "'••   -nc.    the    s,.id    dohu    Leveret     by 

,:;;"*;'"""■"" '"""■'"^•'"'"••"•Hthdav  of  August 

''';'■"•'""""• I.i"i"-I  the  petitioners,    KhM,,   ,• , 

Nathan,c||I„,,h,,.,     H,.„„.ah  D.vi.  |J..,, ,  u.ul   Sn- 

n».  lUlicld.IobH  i;:.dlordMu.|  Spencer  Phipps  .s,..„. 
dates,  to. ndw„hh„nM.|ri„  th..  said  i-unls  and  prem  ■ 
'-.-•.v-,viM.toe..,|,of,b,.u,s„..l,  p:nts.„dsha,esof 
thesa.diaud.asiu   the    .s^d  .Iced  .s    particularly  men- 


124 


OPINIONS  OF  EMINENT  LAWYERS. 


It 


tioned  ;  and  by  another  deed  of  association,  bearing  date 
the  15th  day  of  the  same  moiith  of  August,  between  the 
said  John  Leveret  and  the  last  named  petitionee  -i  of  the 
one  part,  and  the  petitioners,    Jahaleel    Brenton,   John 
Clark,  Samuel  Brown,  Thos.  Fitch,  whose  right  is  vest- 
ed in   the  petitioners,    John    Fitch,    Adam   Winthrop, 
Samuel  Thaxton,  Oliver  Noise,  Stephen  Minott,  Antho- 
ny Stoddard,  Thomas  Westbrook,  Thomas  Smith,  John 
Smith,  Joseph  Appleton,  whose  right  is  now  vested  in 
the  petitioners,  Nathaniel  Appleton,  Thomas  Fairweath- 
er,  Henry  Franklyn,  Gilbert  Bant,  Benjamin   Bronsdon, 
William  i;iarke,  John  Oulton,  Jonathan  Waldo,  Corne- 
lius Waldu  and  John  Jeflries,  of  the  other  part,  reciting 
the  several  deeds  aforesaid,  the  said  last  named  petition- 
ers and  those  under  whom  they  claim,  as  aforesaid,  are 
admitted  and  joiue<l  together,    as  associates  in  the  said 
land  and  premises,  and    such   parts  thereof  allotted  to 
them,  as  in  the  said  last  deed  is  particularly  mentioned, 
the  whole  to  hv  divided   into  thirty  equal  parts,  to  be 
holden  by  all  the  said  petitioners,  and  those  under  whom 
they  claim,  as  aforesaid,  their   respective  heirs  and  as- 
signs forever,  as  tenants  in  common,  and  to  be  no  survi- 
vorship, with  proper  covenants,  each  obliging  the  other 
to  procure    people    to    plant,    settle    and     inhabit    two 
towns,  of  eighty   families  racji,  in  a  christian  manner,  in 
and  upon  the  said  tract  of   ii.iid,  under  such  linutations, 
conditions    and    lesrrvations.  as  iu   the  miid  deed  is   ex- 
pressed ;  iind  to  erect  two  siiw-uiills  on   (ji,.  snid  land  ; 
f-^^-i  for    the  bi'tter  ordering  and   regidating  (he  said   de- 
sign.-d  settlements,    it   w„s  covenMiited   and  agreed  that 
tbe  extent  of  the  said  two  towns  should  biMlcscribcd.  and 
thatt!i..<,„„e  sliould  .c  laid  out  iu  an-gidar  and  delen^ible 
Jiiuuner,  up-ju  St.  George's  Klver,  and  thatpr..|M'r  l..t.s  in 


THE  king's   PREROGATIVfc  ABROAD.  125 

each  town  should  be  set  apart  for  a  minister  and  a  school 
unahe  able,  and  that  lands  should  also  be  set  apart  to 
be  bestowed  on  the  settlers  in  the  said  townships,  with 
covenants  for  the  association  to  do  the  utmost  for  the 
completing  and  perfecting  the  said  designed  settle- 
ments. 

That  the  rest  of  the  petitioners  have  since  purchased 
■several  parts  of  shares  from  the  othw  petitioners  in  the 
said  lands.  • 

That,  hereupon,  the  petitioners  and  those  under  whom 
they  claim  iunnediately,  began  on  making  the  said  set- 
tlement.., and  soon  after    they  agreed  to  have  as  umch 
land  broke  up  and  cultivatod  as  would  accommodate  a 
sufficient  number  of  families  for  two  more  towns,  to  con- 
sist each  of  eighty  families  at  lea.st,  and  the  hoiLses  for 
their  recei,tion  to  be  made  comfortable  ;  and  in  order  to 
prosecuto  and  effectually  bring  forward   the  said  intend- 
ed settlements,  they  built  and  finished  two  str.mg,  large 
blo<>k-houses,  with  a  covered  way  fn.m  them  to  the  wa- 
ter side,  to  .secure  the  men  from  the  incursions  and  inju- 
nes  of  the  Indians,  who  daily  resorted  there  in   great 
numbers,  and  ofttimesthreatoned  those  empfoved  in  build- 
ing and  clearing  the   land,  who  used  several  stratagems 
t<.  get  them  f.n„,  <,ft-tho.se  lamls;  an<l  the  petu.uners  also 
Mult  ;.  double  ,.aw-mill  to  facilitato  the  Kettlements    «n,l 
'H.ugbt  u  ,.l„np.  and  Idretl  men  to  tran.spcrt   people  aiul 
the.r  effe,-ts,    besides  several  other  shn.ps  emplove<l  bv 
tl'em  u,  the, Slid  un.lertaking;  ami  had,  for  aln.ut  twelve 
"'<>"»l.s,  ...  c-aptaiu  an,l  li(.  noKliers.   whom  thev  paid  and 
Hubs.sred   in  the  said    bl.H-k-hous.s,  and  who"w,.re  pro- 
vided   wi,b    gr.'atu.n.l    h.umII  artillerv  to  d<.fend  them- 
selves and   th..  work..H3n  from  the  att^icks  of  the  Kreuch 
Indians,  at  tlie  «ule  charge  ui"  the  md  a*»io«iatiou. 


II! 


"H 


!ii 


•  S-l 


126  OPINIONS  OF  EMINENT  LAWYERS. 

That  by  this  means,  notwithstanrling  the  great  many 
disturbances  they  received  from  the  French  Indians,  the 
petitioners  very  vigorously  pushed  forward  in  settling 
and  bringing  those  lands  into  a  capacity-  of  receiving  and 
securing  a  Dumber  of  inl-abitants.  and  actually  built  and 
erected  several  houses  thereon. 

That  in  June,  1721,  the  French  Indians,  to  the  num- 
ber of  200.  surprised,  took  and  burnt,  one   of  ihe  peti- 
ti-:ners'  sloops,  and  killed  one  of  their  men,  and  took  six 
captive,  and  then  innnediatelymade  up.  in  abodv,  to  the 
block-houses,  and  the    next    day  attacked    them   with 
Hre-arms  for  several  hours,  and  used  several  devices  to 
have   burnt   the  block-houses,  but  wore  defeated  by  the 
courage  of  the  men  employed  by  the  petitioners  ;  but  in 
this  attack  the  petitioners  were  great  sufferers,  the  In- 
dians having  killed  one  and  taken  six    prisoners,  burnt 
their  saw-mill,  n  large  sloop  and  sundry  houses,  and  kill- 
ed many  of  their  cattle  ;  but  notwithstanding  this  great 
destructi(m  made  on  the  petitioners,  they  still  kept  and 
maintained  the  two  block-hou.ses  with  men   and  warlike 
stores  and  provisions,  for  .several  months  afterwards,  al- 
though the  government  of  the   Massachusetts  had  pro- 
claimed war  with   the.se  Indians,  and  the  other  eastern 
tribes. 

That  the  petitioners,  iKMUg  by  this  war  incapacitated 
from  pnr.Muing  ihr  settlements  they  had  so  successfully 
iH'gun,  were  obliged  to  Av-^U  therefrom  ;  but  they  yet 
held  the  two  block-houses  ami  ileleu.led  the  same  against 
a  sii'ge  laid  to  it  by  the  Indians,  for  twelve  davs  togeth- 
er, and  killed  twentv  of  the  enemy;  and  apprehoiwling 
the  .same  might  be  of  gre;;t  sc^rvice  to  the  Ma.s.sachusetts 
government,  in  carrying  on  the  war.  they  made  a  tend- 
er ofthemtothe   government  there,   during  the    wur, 


THE  king's    prerogative  ABROAD.  127 

and  until    the  petitioners  should  have  occa.sion  to  use 
them  for  the  purposes  at  first  designated  ;  which  offer 
the  government  accepted,   and  to  whom  tliey  proved  of 
great  service    in  the   war,  and  were  the  sole  means  of 
keeping  that  part  of  the  country  from  falling   mUi  the 
hands  of  the  Indians,  and  have  ever  since  continued  un- 
r  the  protection  of  the  go.ernment;  and  since  the  war 
ided,    a   truck-house   is  erected    in  the   block-houses, 
which  are  used  as  magazines,  or  store-houses,  for  Indian 
goods. 

That,  on  the  ending  of  that  war,  the  petitioners  again 
resolved  to  continue  and  go  on  with  their  said  settle- 
ments, and  for  that  puri)ose  they  applied  for  and  obtain- 
ed a  letter  from  Samuel  Shute,  Esq,  then  Governor  of  the 
Massachusetts  Bay,  to  the  Chief  of  the  said  Pei;obscot  In- 
dians, to  facilitate   the  petitioners'  gcung  on  with,  ond 
finishing  their  said  settlements.     But  soon  afterwards  an- 
other war  broke  out  with  those  Indians,  which  then  pre- 
vented the  petitioners'  proceeding  further  in  their  intend- 
ed settlements  ;   but  a  peace  being  again  concluded  with 
them,  some  short  time   Uelore   Mr.   Burnefs  coming  to 
that  government,  the   petitioners,  being  still  intent  and 
resolved  on  bringing  forward  and  finishing  ihe  said  set- 
tlements, obtained  a  like  letter  from  Ciovernor  Burnet 
a.s  they  had  In^fore  done  from  Governor  Shute,  and  were 
going  on  to  settle  and  improve  those  lands  with  all  pos- 
sible vigor  and  despatch,  and  had  actually  got  a  minister 
and  120  families  rea.ly  t..  go  and  settle  in  (me  of  the  .aid 
inUmded  towns.    But  to  their  great  surprise,  disappoint- 
ment and  loss,  tlie  petitioners  have  met  with  an  inter- 
ruption   herein,  from    David   Dunbar.    Es,,..    Surv-vor- 
General  of  His   Majesty  s  woods  in  America  ;  who  "  be- 
ing waited  on  by  a  number  ol"  the  petitioners,  Imth  for- 


m ' 


irt 


■V 


128 


0PINI01V3  OF  EMINENT  LAWYERS. 


Ill; 


bid  the  petitioners  from  going  on  with  the  said  settle- 
ments, and  informed  the  petitioners,  that  he  could  not 
permit  their  going  on  with  their  settlements,  on  any 
other  terms,  but  their  taking  grants  from  him,  in  the 
same  manner  as  if  they  had  not  already  any  title  there- 
to ;  upon  which  the  petitioners  informed  Mr.  Dunbar, 
that  they  thought  it  their  duty  to  lay  before  His  Ma- 
jesty, the  matters  aforesaid,  and  Mr.  Dunbar  promised 
the  petitioners  not  to  intermeddle  with  the  said  lands, 
till  His  Majesty's  pleasure  should  be  known. 

"therefore,  and  as  the  petitioners  have  so  clear  a  title 
to  their  lands,  both  by  grant  from  the  Crown  and  pur- 
chase from   the  natives,  and  have   had  the  possession 
thereof  for  so  many  years,  and  been  at  .a  very  great  ex- 
pense in  erecting    the  block-houses  and   several  other 
buildings  thereon,  and  defending  the  same  in  the  man- 
ner byfore  stated,  and  their  endeavors  and  attempts  to 
improve  and  settle  the  same,  which  had  been  long  since 
completed  by  the  petitioners,  but  from  the  unavoidable 
interruptions  given  them  by  the  wars  ;  but  have  always, 
by  means  of  their    block-houses,   kept  the    possession 
thereof,  and  thereby  guarded  and  protected  all  that  part 
of  the  country  ;  and  as  the  petitioners  are  determined 
to  complete  the  said  settlement   vith  all  possible  despatch, 
which   being  of  great  advantage  to  the  Province  of  the 
Massachusetts,  and   His   Majesty's    interest   there  ;  the 
petitionei-s,  in  considerati(m  of  the  premi.><es  most  hum- 
bly  prayed  His   Majesty,  that   His   Majesty  would  be 
pleased  to  send  the  necessary  or<ler  or   instructions  to 
the  said  David  Dunbar,  not  to  intormed<lle  with  the  said 
tract  of  land  to  which  the  petitioners  are  so  entitled, 
as  aforesnid  ;   and  that  he  do  not  interrupt,  oli>truct  (H 
disturb  the  petitioners,  in  carrying  on  their  settlement* 


THE  king's  prerogative  ABROAD.         129 

there,  on  any  pretense  whatsoever  ;  that  so  the  peti- 
tioners may  be  quieted  in  the  enjoyment  thereof,  and 
carry  on  the  settlements  intended  by  them,  without  mo- 
lestation. 

And  we  certify  your  Lordships,  that  we  have  been 
attended  by  Mr.  Paxton,  Solicitor  for  the  affairs  of  His 
Majesty's  Treasury,  and  by  the  respective  agents  of  the 
Province     -  the  Massachu.setts  Bay,   in  New  England, 
and  of  the  petitioners,  and  have   heard  counsel  on  be- 
half of  the  Crown,  and  of  all  the  said  parties  ;  at  which 
hearing,  was   laid   before    us,    a   copy  of    the   Charter 
granted   by    their   late    Majesties,    King  William    and 
Queen  Mary,   on   the   7th   day  of  October,  in  the  third 
year  of  their  reign,  to  the  inhabitants  of  the  said  Pro- 
vince of  the  Massachusetts  Bay,  and  the  several  affida- 
vits  hereunto  annexed,  together  with  copies  of  divers 
conveyances,  of  particular  parcels  of  land  lying  within 
the  tract  in  question,  which  were  certified  under  the 
seal  of  the  said  Province. 

Upon  considering  the  said  case  and  petitions,  and  the 
evidence  laid  before  us,  and   what  was   alleged  on  all 
sides,  it  appears  to  us,  that  all  the  raid  tract  of  lands, 
lying  between  the  rivers  of  Kennebeck  ai   I  St.  Croixj 
is  (amongst  other  things,)  granted,  by  the  said  Charter^ 
to  the  inhal)itant8  of  the  said  Province,  and  that,  there- 
by, power  is  given  to  the  Governor  and  General  Assem- 
l)ly  of  the  said  province,  to  make  grants  of  land  within 
the  said  limits,  subject  to  a  proviso,  that  ni.  such  grants 
should  be  of  any  Ibrce,  until  their  said  late  Majesties, 
their  heirs  or  succcessors,  should  have  signified  their  ap- 
probation of  the  same. 

It  appears  also,  by  the  said  Charter,  that  the  right  of 
18 


•  \ '  i 


: !  I  ■  ! 


-Hi 


.Al 


130 


CNIONS  O"-""  EMINENT  LAWYERS. 


.:   \ 


government,  granted  to  the  said  Province,  extends  over 
this  tract  of  land. 

It  doth  not  appear  to  us,  that  the  inhaf;itant3  of  the 
said  Province  liave  been  guilty  of  any  neglect  or  refusal 
to  defend  this  part  of  the  country,  a.s  cnn  create  a  for- 
feiture of  that  subordinate  right  of  government  of  the 
same,  or  of  such  property  in  the  soil  as  was  granted  fo 
them  by  the  said  Charter ;  it  being  .sworn  by  several 
of  +he  said  affidavit-,  that  a  fort  was  erectf>d  there,  and 
for  some  time  defended  at  the  charge  of  the  Province, 
and  that  magistrates  and  Courts  of  Justice  have  been 
appointed  within  this  district,  and  that  one  of  the  Coun- 
sel of  the  Province  hath  always  been  cliosen  of  this 
division  ;  and  though  it  is  certain,  that  this  part  of  the 
Province  hath  not  been  improved  equally  with  other 
parts  thereof,  yet,  considering  the  vast  extent  of  coun- 
try granted  b\  tins  Charter,  and  the  great  improve- 
ments made  in  several  parts  of  it.  %ve  conceive  that 
will  not  create  a  forfeiture,  because,  in  such  cases,  it  is 
not  to  be  expected,  that  the  whole  should  be  cultivated 
and  improved  lo  the  same  advantage;  and  whether 
there  hath  been  such  a  neglect,  or  non-user  of  any  part, 
as  may  amount  to  a  Ibrfeiture,  ■  -ist  be  judged  of,  not 
upon  the  particular  circumstances  attending  that  part 
only,  but  upon  the  circumstances  of  the  whole. 

And  if  the  Province  had  incurred  any  forfeiture  in  the 
present  case,  no  advantage  could  be  taken  thereof,  but 
by  a  legal  proceeding,  by  mirfi  f<t<u<i.^,  to  repeal  their 
Charter,  or  by  incpiisition,  finding  such  forfeiture. 

As  to  the  question,  stated  in  the  case,  upon  the  eft'ect 
of  the  ccMiquest  of  this  tract  of  country  by  the  French, 
and  the  rcconquest  thereof  by  General  Nicholson,  we 


THE  king's   prerogative  ABROAD.  181 

conceive  that  the  said  traot,  not  having  been  yielded  by 
tho  Crown  of  England  to  France,  hy   any  treatv,  the 
conque.st  thereof  by  the  French,  created,  'according  to 
the  law  ot  nations,  only  a  suspension  of  the  property  of 
the  lormer  owners,  and  not  an  extinguishment  of  it ; 
and   that,  upon  the  reconquest  by  General  Nicholson 
all  the  anci<nit  right,  both  of  the  Province  and  of  pri- 
vji  t .'  pers,  MIS,  subjects  of  the  Crown  of  C         Britain,  did 
revive,  and  were  restored  Jure  postliminu.     This  rule 
holds  the  more  strongly  in  the  pre         -^ase,  in  regard,  it 
appears  by  the  atfidavits,  that  the  Province  joined  their 
forces  to  those  which  came  thither,  under  the  command 
ot  Ceneral  Nicliolson  in  this  sci  vice. 

For  these  reasons,  we  are  of  opinion,  that  the  aid 
Charter  still  remains  in  force,  and  that  the  Crown  hath 
not  power  to  appoint  a  parti,  ular  Governor  over  this 
part  of  the  Province,  or  to  assign  lands  ;  >  persons  desi- 
rous  to  settle  there  ;  nor  can  the  Province  grant  those 
lands  to  private  proprietors,  without  the  approbation  of 
the  Crown,  according  to  the  Charter. 

As  to  the  case  of  the  petitioners,  in  the  two  petitions 
referred  to  us,  who  insist  -^  -<cu\nr  titles  in  them- 

selves, to  certain  parcels  lying  within  the  dis- 

trict  in  question :  we  have  eA.tmined  into  their  claims, 
and  find,  by  the  above-mentioned  c.-pies  of  deeds  and 
writings  pniduced  by  them,  that  several  of  the  petition- 
ers and  those  under  wh(.m  they  claim,  have  had  con- 
veyances made  to  them,  of  ^^everal  of  the  said  par- 
eels  of  land,  sonic  from  tiie  Council  of  Plvmoutb.  which 
was  constituted  by  CharuT  in  the  reigi,  of  King  James 
the  First,  and  whose  grants  were  coulirmed  i)v  the 
ChMrt.-r  of  King  Willi, „i  ;,,„1  Queen  Mary,  and  others 
from  IiKiians,  i)rctending  to  be   the  owners  thereof,  un- 


it 


■'•"^^'i'  I 


182 


OPINIONS  OF  EMINENT  LAWYERS. 


W' 


Sp»   '- 


der  which  large  sums  of  money  appear,  by  the  said  affi- 
davits, to  have  l)een  laid  out  in  endeavoring  to  settle 
and  improve  the  lands  therein  comprised,  several  of 
which  sums  were  cx])ended  not  many  years  go  ;  par- 
ticularly a  sum  of  £2,000  by  Sir  Bibye  Lake,  in  the 
year  1714,  and  other  sums  of  money  by  others  of  the 
petitioners,  in  the  years  1719  and  1720.  And  though 
ihese  settlements  and  improvements  have  been  in  great 
measure  interrupted  and  defeased  by  frecpient  wars  and 
incursions  of  the  Indians,  yet  .>*everal  of  the  petitioners, 
or  their  tenants,  appear  to  be  still  in  the  possession  of 
some  parts  of  the  said  tract  of  land. 

Some  objections  were  maile  before  us,  to  the  nature 
of  the  grants  and  cv>Mveyances  under  which  the  peti- 
tioners claimed,  and  Ihe  manner  of  deducing  down 
their  titles  ;  but  we  concrivf.  tiiat  in  (juestions  of  this 
kind,  c<mceniiiig  rights  to  lands  in  (he  >Vest  Indies,  and 
upon  encpiiries  of  tins  nature  the  same  regidaritv  and 
exaiihess  is  not  to  be  expect  d  as  in  pr  vate  suits  con- 
cerning titles  to  lands  in  Knglund,  but  that  in  these 
cas.'.-s,  iho  principal  regard  ought  to  be  had  U)  the  posses- 
sion and  the  expenses  the  |>arties  ha  ,e  l)een  at,  in  er.- 
deavoriug  to  setth'  and  cultivate  su<'h  lands. 

Tiierelnre,  upon  the  whole  matter,  we  are  of  opinion, 
that  the  jietitiouers,  tiieir  Lnants  or  agents,  o.ight  not 
to  l;e  disturlu'd  in  their  jtos.si-.H.Miou.  or  inierruptvd  in 
carrying  on  their  .settlements  in  the  lands  granted  to 
them,  within  the  district  in  ipi  'stion. 

1'      YoKKK. 

August  11,  1731,  C.  Talbot. 


THE  king's  prerogative  ABROAD. 


138 


(12.)  Of  Hie  King^,  right  to  tU  ivood^  in  the  Proviiice 
of  Maine,  hy  Mr.  West. 

To  the  Right  Hon.,  the  Lords  Commissioners,  for  Trade 
and  Phmtatioii.s. 

My  Lurds  ; 
In  obedience   to  your  Lord.hips'  commands,   I  have 
perused  and  considered  of  the  several  papers  relating  to 
the  memorial  of  John  Bridger,  Esq.,  .^urveyor-General 
ol  llKs  Majesty's  woods  in  America,  and  I  do  find  that 
the  title  which  Mr.  Elisha  Cook  doth,  by  his  memorial 
claim  to  be  in  the  Province  of  Massa<.husetts   Bay    in 
opposition  t«  the  right  of  His  Majestv,  to  all   trees'  fit 
.  >r  mascs.  of  the   diamet^-r  of  twenty -four  inches  and 
v.pwards  at    twelve    iiu-hes  from  the   ground,  growing 
Av.tlnn  the  Province  of  Maine,   in  An.erica,  ^s  founded 
upon  a  ,suppo.sed  purchase  of  the  said  Province  of  Maine 
I'V  the  Province  of  the  Massach isetts  Buv,  «,f  and  from 
the  a.<..,gnees  of  Sir  Ferlinando  Gorges,   ;he  per.s<m  t^ 
wuom  the  saul  Province  v.  as  originally  granted  fro,     the 
Cn)wn. 

I  n.ust  l,t.g  leave  t.,  observe   to  your   Lordships,  that 
King  Charles  the   First  H"  .  inc.,rp<,rate  the  a.s.ignee8  of 
»'"•   Patot.   which    Kin.    James    the    First  did,    in    the 
eighteenth  y.Kxv  ..f  h.y  reign,  g  -ant  to  the  Council  e.stab- 
lishcd  at  Plymouth,  i,.  the  county  ,  f  lVv.,n.  bv  the  name 
-»  tl'*'    '-vcrn,.r    and   C<.mpa.,y    -.f  the    Massachusetts 
I5^v,  in  .\rw   Kugland,  by  wh  cb  Chatter  the  s^iid   King 
did  gihut  unto  the  said  .•..rporation,  jM.wer.  to  have  take 
po-.'s,s,  acp.ire  an.l  pun-haM>  any   lau.ls,   tene,u..nt«  or 
iHn.Htament..,  nrauy  g.HKl.  ,>,■  ,dr.tt"ls,  «„,|  tb,-  .same  to 
l'-;t>*c,  ,:;.Mnt,  demise,  ai,e„,   Urgaiu,  sell   and  d.sp.,sr  of 
ns  other  .ur  l.egr  p,M.ple  of  this  our  rc>alm  of  England' 


.H! 


^*«# 


1 


n  t 


134 


OPINIONS  OF  EMINENT  LAWYERS. 


'k 


or  other  corporation  or  body  politic  of  the  siime,  may 
lawfully  do. 

In  the  fifteenth  year  of  King  Charles   the   Fir.^t,  t' 
Province  of    Maine   Avas    <i;ranted    to   Sir   Ferdina' 
Gorjojes,  his  heirs  and   assigns,    which   Province  d'v    . 
scend  unio   Ferdinando  Gorges,   son   and   heir  of 
Gorges,  who   was  son   and   heir  of  the  said   Sir 
nando  (iorges.  which  Ferdinando  (Jorges  did.  in 
1677,  in  consideration  of  the   sum  of  one  tho>' 
hundred  and  titty  pounds,  give  and  grant  all  his  ri^, 
and  title  in  and  to  the  said  Province,  unto  John  Usher, 
of  Boston,  merchant,  his  heirs  and  assigns'  hut  whether 

» 

it  was  by  way  of  absolute  sale,  or  way  of  mortgage, 
doth  not  appear;  and  the  said  John  Usher  did.  after- 
wanls,  in  the  year  l(»7ft.  convey  the  same  unto  the  said 
corporation,  as  appejirs  by  the  printed  journal  o'  the 
House  of  Representatives  of  that  Province  which  was 
sent  to  me  by  Mr.  Duminer,  their  agent.  It  may,  my 
Lords,  be  made  a  (iuesti(m  in  law.  whether  that  corpo- 
ration, which  was  created  b\  King  ("liarles  the  First, 
could  legally  punli;ise  the  said  Province  of  Maine,  ina.s- 
mnch  as  the  clause  of  license  docs  go  n'>  further  than 
that  they  might  purchase  binds.  ».S:c  ,  xh  any  other  cor- 
poration or  Innly  p<ilitic  in  Kiigland  might  lawttilly  do; 
and  take  it  t  be  (dear  law,  tliat  no  corporation  whatso- 
ever, in  Kngl.Mnl.  (mii  piinbas*-  an\  bimls  which  shall 
inure  to  tbem:-clv(-.  iHiIcj.m  mii  express  license  for  that 
purpose  be  inserted  in  lln  ir  (liarter  of  ini'orporation,  or 
otherwise  Voiii  !.,ordsliiii'j  »'•'!  he  |i|ea-eil  to  ob-^erve, 
that  this  cor])oration  is,  b\  llie  ('barter.  oiil\  Miliie-ted 
to  the  -atiie  laws  at  tin  oTjtorations  in  Kngland  .ire; 
and  that  there  ]•*  no  license  i.i|ii:rcl  ~e  lands  grantetl  to 
them  by  ex|)ress  wonls       1   neetl  not   okserve  Ut  yoiu* 


THE    KINC'S  PBlnocATlVE  ABROAD.  ]35 

Lord,hip»    ,|,„t  „„,hi„,,  ,,„i  ^  ,^.^^^^ 

<lee,l,  I  »ho„l,  „„t  have  ,„a,lo  „.,.  „f  „„,    „,.,,„„,". 
th.»  n„  uro.  ,l„l  I  „,„  think  „,„  ,„„i„,,„;„/,^^   ^;.  ' 
pror,.«„„vc.,  ,„  roiali,,,,  t„  ,he  naval  „„re,  f„  A„,„io 
"f  the  ut„„„t  c„„s,c|„onoe  t„  the  kinplon, ;  and  tl.aV 

token  V.  ,„.h  ,l„es  „,„  ,„jn,,.  a„v  private  p..rs„n, 

nut,  a,  „n„n„-  ,ha, .,„„,„i„„  „,„  ,,|,v  „n„,,le<l  ,„ 

pur  h,.,e  la„,l„,  vet  tin.t  e„rp„rati„n  i,  n„„  .x,i„K„i,|,ed 

lor  the  patent  4^^  Car„!i  ,,r .„a,,i„  ,he  vear  f.  8      e 

verged  ,„  Chaneerv,  l,v  a  ,iu,|.„,en,  „,«,„  „  .,,>   t.'/" 
and  eo„»e,„u.nti,  the  Previn...  which  „„.  ,ran  Cl  to 
h«t  c„rp„ra„on.  a,„,  „„  ,„nd,  pnreha.,ed  hv  that  eilv 
ra  „  „   were  revested  in  ,he  c„,„„  :  „„d.  therefore  the 

If^ ;'t  "'  ■^■-"-  ^-^"-Hl  .-.  he  „„  otherwi*  en  i 

tied  unK.the  Pr.,vi„ee  „t  Maine,  than  l,v  ™,n,e  new  tit  e 
wlueh  n,„„  have  aA^erned  „n..,  then,  suh,.,„en,  to , 
„corpora,,o„  hv  Kin,.  Hi„i„„.  „hi,.h  i.  i„;„.^,::: 

"  '  ;"""''  '"">■  ' "■  ""'"■  lluTe  i.  no  li,.e„,e  i^,,„,e<. 

::":"■:;," '■«■ >»  i" -r  ...  .heir  .aat  1  2 

The,ri,u,   Charter  w„.  granted  h,    the  lat.  Kin,  Wi 

--M,,e,hirdve„rorhi,re,,n.in„hiehCh„r,e    it 

"Wvahh.,.ha,,,,.rei»n,,.av tion.  in  the  „,„',' 

"•  "  ■■•>n."ra..on,  l„„  i„  ,h..  ,hi„,  i,..|r.     A„,l  .o  far 

■.,     ,  "■'    '■"'■P"n,l, ■, .,.in,r..eiv..l.  ,h„,.  hv  Ihi, 

...Her.    he.v  are  „o,  „.  , ha -ted  int.,  a  eo  „»  ' 

^     .  I....  .he  very, er:n,„r  the  Charter  are.  that  the  Kin. 
7  ';'■'■'■'  ;""'  "• I«'".'<'  11 ral  eo,n„rie,  ,2- 

;:;:"■ '-7'""; "U ...eeh.v,he„„:: 

'"'"1      "  .-  Pi...n.  .0  de,non..r,.,i„„,  th«,  K,m.„  Will,.,!, 


I    r  I 
:   i  1 


1 1 


136 


OPINIONS  OP  EMINENT  LAWYERS. 


did,  at  the  time  of  granting  this  patent,  consider  all  the 
countries  therein  named,  and  particlarly  the  Province  of 
Maine,  as  vested  in  himself,  in  the  right  of  liis  Crown, 
and,  therefore,  he  does  miite  and  incorporate  all  those 
countries,  which  were  before  several  and  distinct,  into 
one  real  Pnn'ince,  and  does  then  grant  all  the  lands  in- 
cluded in  that  Province,  unto  the  inhabitants  of  the 
Province  of  the  Massachusetts  Bay,  in  which  denomina- 
tion and  grant,  the  inhabitants  of  the  Province  of 
Maine,  &c.,  are  as  much  included  and  concerned  as 
grantees,  as  the  inhabitants  of  that  part  of  the  country, 
which  was  originally  and  singly  known  by  the  name 
'  ■  the  Massachusetts  Bay;  ail  these  Provinces,  there- 
fore, are  now  to  be  considered  as  one ;  neither  is  it  pos- 
sible, that  one  part  of  the  Province  should  be  the  pri- 
vate pn)perty  of  another. 

It  is  true,  that  the  King  does  grant  a  power  i.nto  the 
General  Assembly  of  the  said  Province,  to  make  grants 
of  lands,  uncultivated,  lying  within  the  IxMUids  de- 
scribed in  and  by  the  Chartt'r ;  but  that  grant  d()es  no- 
ways extend  U)  one  part  of  the  Province  more  than  an- 
other, but  is  ecjual  to  them  all ;  and.  therefore,  subject  to 
the  last  clause  in  the  Charter,  by  which  all  trees  (jf  the 
l)efore-mentioned  size,  are  reserved  to  the  Crown,  and, 
c(mse«pu'ntl\ ,  the  General  A8.sem))ly  of  that  ProviiK  • 
cannot  make  any  grant  of  hums  to  private  persons, 
without  their  being  subject  to  that  clause  of  rrscrva- 
tion. 

The  act  of  Parliament,  Nemo  Anne.  |)age  .'iH7,  extends 
no  further  than  the  reservation  in  the  Charti-r  d(H's,  only 
that  pren»gative,  which  iK-iorc  subsisted  sii'.giy  on  the 
Charier,  is  nov  confi  ned  and  established  liy  authority 
of  Parliament ;  and   therefore,  u{M)n   tlie   wliole  matter, 


THE  king's   prerogative  ABROAD.  I37 

I  am  of  opinion,  that  the  Kaig  .s  legally  entitled  to  all 
ee.sot  the  pi-esoribed  nize,  growing  in  the  Province  of 
the  Ma..aohusett,s  Bay,  as  it  is  described  and  bounded 
n  the  Charter  of  King  William,  and  particularly  in  the 
Ircn.nee  ot  Maine,  excepting  only  those  tree.  ;ituated 
inland,  winch  were  legally  granted  to  private  persons 
be  ore  u.  Charter  4-  Carol i  Prind  wa,; reversed  ;  and 
which  1  humbly  certify  to  your  Lordships. 

November  12,  1718.     -  •^^''■"-  ^^''^'^• 

W  Mr^a>u^,  opl„ion  on  the  Khuj\s  rujht  to  the 

To  the   Right  Honorable  the  Lonls   Commissioners  of 
Iradeand  Plantations. 
M\-  Lords  ; 

In  <.l    dicn.'c  to  your  Lordships"  connnands  signified 
t<.  .ue  by  Mr.  Popple',  letter  ot  ,he  21st  of  dune,  ^e 
by  your  Lordships  are  pleased  to  de.sire  nn  opinion,  in 
ponit  ol  law,  whether  the  Act  of  the  eighth  year  of  His 
I^c.ent  Majesty,  for  the  further  encouragemJnt  of  naval 

stores,  and  other  purposes  therein  n,..nt,.,ne,l,  wherebv  it 
isenacte.  lor  ,bepreservat.,nofubitep,uetrees-for 
n.ast.ng  the  ,oy.I  n,n,  ., bat  no  persons  witbin  the  colo- 

n.- oi   Nova  Scotia,  New  Hampshire,  tlH.  Massachusetts 

5...,audIrov.n.eofMaiM..,    HI. Island  ami  Provi- 

';'"••';  "-^'tion.  the  Narraganset  Count,  v  or  King's 
rovn.ceau.1  Conn....,i..Mt,  in  N-w  Knglaml,  and  nX 
ork  an,l  New  Jcnsey.  n.  .\„u.nV,.,,  .hall  ,  ut,  IWI  .•  ,i 
.K'stny  any  ub,t..p,Me,rn.s,  not  growing  in  anvtown- 
"t^T  :  ':"""'^  ""■'■•""'"•"'-•  I-ticu!ar  p;nalties. 
-beUu.,,b.sA..tdoes,  ,n.ny  manner,  tai.-  away  ^hj 
nghttlu..rownhatb..p,v..,v.....™,,,,,^^^^^^^^^ 

1 « 


isd 


OPINIONS  OP  EMINENT  LAWYERS. 


mi 


in  the  Massachusetts  Charter,  of  all  trees,  of  the  diame- 
ter of  twenty-four  inches  and  upwards  at  twelve  inches 
from  the  f^ound,  gi-owing  upon  any  soil  or  tract  of  land 
in  the  said  Province,  not  heretofore  granted  to  any  pri- 
vate persons. 

T  have  considered  tlie  Act  of  Parliament  and  the 
Massachusetts  Charter,  and  I  apprehend  it  can  never  be 
supposed,  that  an  Act  of  Parliament,  made  on  pnrpo.se 
to  guard,  by  severe  penalties,  ihe  King's  right  and  pro- 
perty, in  one  particular  instance,  should,  hy  a  strained 
and  distant  ini])licatioii,  take  away  and  diminish  that 
right,  in  a  matter  noways  the  design  or  in  the  intentiim 
of  the  Legislatuii'.  The  King,  h}'  a  general  severati(m 
in  his  Charter,  was  to  have  all  trees  of  such  a  growth, 
not  expressly  given  away  in  townshijis.  or  out  of  them  ; 
now  the  only  provision  made  hy  the  Act  oi"  the  eighth 
of  the  King,  and  that,  1  think,  a  wvy  reasonable  and 
necessary  one,  was  to  prevent  his  trees,  nut  i>f  townships, 
from  being  cut  down  ;  it  goes  no  i'lirtht-r.  The  danger 
and  mi.schief  was.  that  such  trees  as  lay  out  (»f  town- 
ship'*,  might,  without  any  {liscov<'ry,  Ite  cut  d<!wn  and 
carried  away,  and,  ther  -lore,  the  pi-nalty  is  applied  and 
proportioned  to  the  ea>*c  and  practi('iil)lene^s  of  doing  it, 
and  the  ditliculty  of  having  ex  idence  to  convict  the 
offender.  This  is  tin'  scope  ami  design  of  that  clause, 
and  it  nu'ddh^s  with  nothing  else,  but  leaves  the  King's 
right  iinimpeached  as  t(»  tree-  in  townships,  which 
coidd  not,  probiibly.be  cut  down  without  tin-  knowledge 
of  the  Kings  oflicers,  and  where  there  coidd  be  no  like- 
lihoinl  to  cut  down  such  trees,  being  such  as  perhaps, 
were  very  necessary  I'oi'  shelter  or  oiiianient.  If  the 
woni'^  of  liie  Ai'f  hati  bt>en,  no  license  shall  be  itMpiired 
hut  '"or  trees  growing  out  of  townships,   thai,  perhap?!, 


THE  king's   PREROG4TIVE  ABROAD.  Ig^ 

had  made  the  case  diflerent;  hut  the  words  are,  no  per- 
son .liall  tell,  cut  and  destroy  any  white  pine  trees,  not 
grow-ng  m  any  townships,  so  that  the  cutting  of  trees 
out  of  townships,  without  license,  subject,,   them  to  the 
punishment  inflicted  by  this  law,  whereas  the  cutting  of 
white  pnie  trees  in  township.s  makes  them  now  (the  Act 
<)t  the  !)th  of  Queen  Anne  being  repealed  by  this  Act,) 
only  liable  to  an  information  f..i-  the  trespass,  or  an  ac- 
count for  tlie  value  and  profits  of  the  trees ;   and  all  the 
diflererxe  is,  the  Kings  property  is  better  secured  out  of 
the  townships  than  within  them ;  but  still  the  King's  right 
to  such    trees   remains,   and   it   has   the  protection  and 
guard  of  the  common  law.  not  ouly  in  giving  a  remedy 
ior  the  violation  of  it.  but  iu  prex    ntiug  all  atteu.pts  upon 
It,  by  that  known  rule  of  law,  that  iio  implication  shall 
prevail  against  the  Crowns  interest  and  prerogative. 

July  10,  172(3.  *^"^'^'-  ^^'*'^' 


(U.)  The  opinion  of  th,  Atfoniey  awl  Solieitor-Gen- 
a-al,  Yovle  <in<f  Talhof,  on  t/u  Kin,/,  ri.jht  to  the  uooih 
in  Nen-  Hnijhini!. 

To  the  Kight    Honorable  the   Lords   Commissioners  of 

Trade  and  Plantations. 

May  it  pleas«'  \our  Lordships; 

We  re.M.iv,.d  a  h'tter  irou,  Mr.  Popple,  written  by  vour 
Lordships'  commands,  importing  that  in  the  ChartJr  of 
Ma.s,uchus..tts  Hay,  granted  by  King  William  and  Queen 
Mary,  n,  tb.  third  v.ar  of  their  j-eign,  tlure  L,  an  express 

''^"^''■'•" •"  "'^'  <''"\^",  of  all  trees  of  the  diamet4ir  ,,f 

Iw.'utv-tonr  inches  and  i.pwaidsat  twelve  ijuhe.s  irom  the 
gn.nn,!.  triowu.g  upon  an.\  .su,l  or  trad  of  land  m  the  aai.l 
Province,  nut  heretolore  gi'auted  to  auN  private  persons  . 


\i 


Ill 


1^ 


IM:      ■' 


140 


OPINIONS  OF  EMINENT  LAWYERS. 


that  this  reservation  in  liehalf  of  the  Crown,  is  entirely- 
destroyed  by  the  construction  which  the  people  of  New 
England  put  upon  the  oth  section  of  an  Act  passed,  in  the 
eighth  year  of  His  Majesty's  reign,  entitled  an  Act  giv- 
ing further  encouragement  for  the  importation  of  naval 
stores,  and  for  other  purposes  therein  mentioned,  where- 
by it  is  enacted,  for  the  preservation  of  white  pine  trees 
for  masting  the  royal  navy,  that  no  persons  within  the 
colonies  of  Nova  Scotia,  New  Hampshire,  the  Massachu- 
setts Bay  and  Province  of  Maine,  Rhode  Island  and  Provi- 
dence Plantation,  the  Narraganset  Country,  or  King's  Pro- 
vince, and  Connecticut,  in  New  England,  and  New  York 
and  NVw'  Jersey,  in  America,  shall  cut,  fell  and  destroy 
any  white  pine  trees,  not  growing  in  any  township,  or 
the  l)Oundaries  thereof;  that  the  construction  they  put 
upon  this  paragraph  is,  that  trees  growing  within  any 
township  are  not  the  Kings  property,  and,  consequent- 
ly, that  the  Surveyor-General  of  the  woods  has  no 
power  to  prevent  the  people  from  cutting  them  for  their 
own  use ;  that,  in  order  to  prevent  this  for  the  future, 
your  Lordships  desired  our  opinion,  in  point  of  law, 
whether  the  words  of  tlie  fore-mentioned  Act  of  Parlia- 
ment can  be  construed  to  take  away  the  right  reserved 
to  the  Crown,  by  the  fore-mentioned  Charter,  of  trees  of 
the  diametci-  of  twenty-four  inches  at  twelve  inches 
from  the  ground,  growing  in  any  township  ? 

We  humbly  certify  your  Lordships,  that  wc  are  of 
opinion,  nothing  contained  in  the  said  Act  .  !"  l*arlia- 
ment,  can  l)e  construed  to  take  away  tlie  right  reserved 
U>  tlie  Crown,  by  the  said  Charte/,  as  to  trees  <jf  the  di- 
ameter of  twenty-four  inches  at  twelve  inches  from  the 
ground,  wh'Mher  the  same  are  grow  ing  within  or  out  of 
any  township,  tlu!  intention  of  the  Haiti  act  appearing  to 


-i.^, 


,%    « 


THE  king's  prerogative  ABROAD.  141 

US  to  be,  to  make  a  larger  provision,  for  preservation  of 
white  pine  trees,  than  was  done  by  the  Charter,  by  pro- 
hibiting, under  .severe  penalties,  the  cutting  down  such 
trees  growing  without  the  limits  described  in  the  Act 
notwithstanding  they  might  happen  to  be  (he  property 
ot    private    persons,  and  of  dimensions  different  from 
those  described  in  the  Charter,  without  His  Majesty's 
license ;  but  we  conceive,  that  this  is  so  far  from  having 
weakened  or  prejudiced  any  particular  right,  vested  in 
the  Crown,  to  such  trees,  that  the  same  is  rather  secured 
thereby  ;    since,   if  any  white  pine  trees  shall  be  cut 
down,  which  shall  happen  t.,  be  both  within  the  reserva- 
tion  of  the  Charter,  and  the  prohibition  of  the  Act  of 
Parliament,  the  King  may   have  a  new  remedy  against 
the  offenders,  by  suing  for  the  penalties  inflicted  by  the 
Act,  in  the  summary  metho<l  thereby  directed. 

P.   YORKE. 

December  23,  1720.  (^  q,  . 

'  l>.   lALBOT. 


m 


(15.)  (>/  tho  Kuufs  right  to  iniiie*,  in  New  Jersey  by 
the  A  ttoriuy  ami  Solicitor,  Raymond  and  Yorh'. 

To   the   Right  Hononi)>le  the   Lords  Commissioners  of 

Trade  and  Plantations. 

May  it  please  your  Lordships; 

'"  olHHlience  to  your  Lordships'  commands,  signified 
to  ...s  by  Mr.  Popple,  an.l  requiring  us  to  consider  the 
annexed  extract  of  a  letter  fnmi  Mr.  IJumet,  (Jovernor 
or  New  .fcsey.  dated  the  twelfth  daA"  of  Ooceniber  one 
thousand..sc.ven  hundred  an.l  twentv-two,  in  relati.m  to 
gnl.l  and  Hiver  mines  said  t„  be  fi.und  there,  r.nd  to  rc- 
l>«"tournpini(,n,  in  point  of  law,  what  rigl.'t  and  title 
1^  remain.ng  t<»  Ilis  Mije«ty,  in  the  .said  gold  and  silver 


^7^1: 

H 

■  ■  •  1 

^^^1 

:    -flit 
•      ; 

^^^^^ 

i 

'l^^H 

f 


142 


OPINIONS  OF  EMINENT  LAWYERS. 


M     J"! 


[I  I*, 

f.f:    '■' 

a  - 


ifi 


f  f 


mines,    and  how  far  the  pr«    ....  proprietors  have  the 

right  in    the    said    iiiines,    according   to    their   hieveral 

grants.      We  have  considered  the  casc^,  as  stated  in  the 

said  extract  of  the  letter  transmitted  to  us,  and  have 

looked  into  the  Charter  granted  to   the   proprietors  of 

New  Jersey,  and  do  certity  your  Lordships,  that  we  are 

of  opinion,  that  by  the  said  Charter,  only  the  base  mines 

within  that  Province,  passed  to  the  grantees,  and  that 

the  words  of  the  grant  are  not  sufficient  to  carry  royal 

mines,  the  property  whereof  still  remains  in  the  Crown, 

notwithstanding  anything  that  has  appeared  to  us  ;   but 

we  beg  leave  to  inform  your  Lordships,  that  we  have 

not  heard  the  proprietors,  or  any  y  erson  on  their  behalf, 

upon  the   subject  matter  of   this  reference,  not  being 

directed  by  your  Lordships  so  to  do, 

lloBT.  Raymond. 
November,  30,  1723.  P.  Yorke. 

(16.)  Of  tlie  roijal  rhjld  of  E/^chmtH  in  Virginia, 
hj  the  Atiorneij  an<1  Solicitor-OiiKval,  Somer^i  and 
Treror. 

May  it  please  your  most  excellent  Majestv  ; 

In  oltcilience  to  an  order  of  Council,  hereunto  an- 
nexed, we  hiive  considered  ui'  the  (piesti(m  ■  AVhether 
escheats  in  Virginia  may  be  granted  belbre  tliev  actually 
accrue  ?  And  it  <locs  ap[)t'ar  to  us,  that  the  tenure,  by 
which  the  lands  in  Vii-iiii;i  are  lioLUn  of  tiic  Crown  of 
England,  is  in  frt>e  and  cuijiiiikii  .^k-immc.  ;is  (if  the 
manor  of  Kast  Greenwich.  I'lic  eonse(iuen(;e  of  this  • 
tenure  i.s,  that  where  any  jter.son  dies  without  heirs,  his 
land  will  esch«'at  to  the  Crown,  as  having  the  imme- 
diate seigniory  ;  and  we  are  of  opinion,  that  e.soheaUs  of 


THE   king's  prerogative  ABROAD.  143 

this   nature   cannot    be   granted,  before  +hev    happen 
otherwise  than  by  a  grant  or  alienation  of 'the  seign- 
iory Itself,  which,   we  suppose,  is  not  intended  to   be 
done. 

There  are  other  escheats  upon  attainder  of  treason 
which  are  n.)t  incident  to  the  tenure,  but  belong  to  the 
Crown,    (as    a  prerogative  royal,)  of  whomsoever   the 
land  be  liolden.      It  seems  to  us  to  be  v.ry  doubtful 
whether  such  royal  escheats  may,  in  any  manner,  be 
granted  belbre  they  happen  ;  but,  if  that  might  be  done 
we  are  humbly  of  opinion,  that  it  is  not  advisable  for 
the  Crown  to  part  with  such  a  right,  and  to  put  the 
iorteitures  for  treason  in  other  hands. 

J.    SOMERS. 

Thos.  Trevor. 

(17.)  0/the  peculiar  E»hmtM  in  New  Ja-wy,  which 
u'm  in  the  ha?»/.s  of  Propriefarie^^  hy  the  AftarneyGm- 
eval  Northetj. 

To  the  Right  Honorable  the  Lords  Commissioners  for 

Trade  and  Plantations. 

May  it  please  your  Lordships  ; 

in  humble  obedience  to  ycnir  Lordships'  commands 
signified  to  me  by  Mr.  Topple,  Jr.,  your  Secretary,  I 
have  considered  of  the  annexed  letter  and  papers  there- 
with .ent,  and  have  perused  the  letters  patent  and  sur- 
render, mentioned  in  the  said  letter  ;  and  am  of  opinion, 
that  the  fiiu's.  forfeitures  and  escheats  in  New  Jersey 
iK'long  to  Her  Majesty,  and  not  to  the  proprietors  of  the 
soil  of  that  Colony  ;  for.  as  to  the  flues  and  forfeitures 
lor  offences,  they  were  not  granted  to  His  late  Majesty, 
KiuL'  James  the  secon.l.  when  Duke  c.f  York,  by  the  let- 
ters  patent  granted  to  him  of  the  Jerseys  and  other 


^11 


AAtk 


y 


144 


OPINIONS    OP  EMINENT   LAWYERS. 


lands,  under  wliicli  grants  the  present  proprietor? 
claim.  And,  as  to  the  escheats,  the  vvliole  tract  was 
granted  in  fee  to  ^he  Duke  of  York  to  be  holden  of  the 
King  in  common  soccage  as  of  his  manor  of  E  , 
Greenwich  ;  and  the  inheritance  of  part  being  grante' 
away,  bj  the  assigneed  of  the  Duke,  to  other  perso:.^ 
in  fee,  they  hold  of  the  Queen,  and  not  of  the  pro]  --i- 
etors ;  and,  therefore,  the  escheat  nuist  he  to  Her  Ma 
jesty. 

As  to  the  appointing  of  rangers  of  the  woods,  the  in- 
heritiince  of  those  woods  lieing  in  the  proprietors,  as- 
signees of  the  Duke  of  York,  I  am  of  opinion,  the  right 
of  appointing  rangers  in  them,  belongs  to  the  owners 
of  those  woods,  and  not  to  Her  Majesty. 

Edw.  Northey. 
October  19,  1705. 


•  '    ..< 


(18.)  t...   the  eschmt  of  iictjrms  in  Jamaiva,  by  the 
Solicitor-General  Mar  faff  ue- 

To   the  Right  Honorable  the  Lords  Commi.ssioners  of 

Trade  and  Plantations. 

May  it  please  a  our  Lordshij.  , ; 

In  obedience  to  your  Lordships'  commands,  signified 
to  me  by  Mr.  Popple,  Jr.,  in  Iiih  letter  of  the  12th  of 
March,  I  have  considered  of  :l,e  petition  ol"  Mr.  James 
Whitechurch,  and  the  .several  papers  then  ■.  iito  annexed; 
and  in  answer  to  the  qn(Bre  h>!  sends  me,  from  your 
Lordships :  Whether  the  limitauou  ol  .ive  years'  pos.se.s- 
sion,  mentioned  in  the  *,(t  of  Assemblv  for  confirmin-i' 
and  securing  titles  to  estatr«,do'}s  t)iiid  the  Crown  ?  I  do 
humbly  certify  to  your  Lordships,  that  it  is  my  opinion, 
that  the  Crown's  title  is  not  lM)und  by  anything  in  the 
said   Act,  because   tiie  plea  of  five  years'  posse.ssion   is 


THE  KINGS   PHKKOGATIVE  ABUOAD.  I45 

only  t(,  har  a  plaintiff"  or  demandant  that  is  not  a  mi- 
nor or  under  coverture.  ),oth  which  disabilities  or 
rather  prolections,  are  in  no  wi.e  applicable  to  the  per- 
son that  wears  the  Crown,  which  .hows  the  design  of 
the  sa.d  Act  to  be  only  to  bar  such  demandants  and 
pliuntills  as  are  sometimes  liable  to  those  incapacities 

But,  notwithstanding  the  petitioner  cannot  make  title 
aga.nst  the   Crown,  by  Ibrce  of  that  Act  of  Assembly, 
yet   I  do  Iu„n],ly  conceive  the  inquisition,  which  finds 
the  Queen  s  title,  is   not  valid  nr  law,  and  consennentlv, 
Mr.  Wlutechurch's  right  to   the  negroes  n.entioned   in 
•said  wr.t,   .snot  thereby  .sot  aside;  for  the  inquisition 
does  not  find  the   negroes  mentioned  in  the  writ  to  be 
the   .same  as  Charles  Delaniain  died  .s.-ised  of,  but  only 
.^ays,  that  the  jurors  do  believe  tiienx  t<,  be  the  same 
and,  therefore,  since  it  is  ass.rte.l  that  the  negro  woman 
fi-om  whom  the  rest  have  issued,  was,  n.anv  years  ago, 

«ohltotew,te  of  the   petitioner.  l>y  the  administraL 
oi    \VrothDelamain,  whose  property    she    was    at    the 

said  Wroth    Delanmin,  ami  that   the  said  Charles  Dela- 
ma„,  was  never  seised  of  her,  or  any  of  her  off-spring, 
which,  d  true,  will  take  away  all  pretence  to  an  escheat 
and,  after  .so  h.ng  and  uninterrupted  enjovmenr,  eve- J 
th.ng  ought   to  be  presumed,  that  can  be  ihou^.t  of  ia 
♦avorof  the   possess-     ;  and  since  this   inquisition  w^.s 
l^et  on  foot   in  the  absence  of  the  petitioner,  even  when 
he  was  out  of  the  isle,  after  all   his  papers  had  been  de- 
stroyed by  t:.e  fire  at  Port  Royal,  my  humble  opinion  is 
that  ,t  will  be  more  for  Iler  Majesty's  service,  to  direct 
a  grant  to  be  made  .,./  rorn/>o,;n>,f>o»  f/f.hm  of  tlu" 
petruoner,   than  to  give  any  coup     .,„„,,  ,.,  ^he  grant 
V^'hich  Brigadier  Han.lisyd  has  n.vde,  of  the  eleven  ue- 


146 


OPINION'S  OF  E'  LV^NT  LAWYERS. 


•♦ 


groes  to  the  Provost  Marshal,  and  Socretarv,  Mr.  Bigby. 

James  Montague. 
April  2,  1708. 


£  as  -       ' 


fit 


(19.  On  the  e-'^fhuit  of  to/z/icn/ris.  in  Jamoi^:a,  bij  th^ 
saint  Inicifcr. 

To  the  Right  IlonorahU^    the   Lords    Commissioners  of 

Trade  and  Plantations. 

Miiv  it  |)lea-<e  \  i>ur  Ij  )rd-<hips  ; 

In  C(>ni|iliancf>  to  ypiir  Lni-d-liips"  de-ires,  signified  to 
me  hv  Mr.  PoppU's  Iftt.M-  of  tlic  12t!i  of  tliis  instant, 
Noveinhi'r.  1  hav-  iH'rn~c-d  the  extrp."t  of  IV-igadier  Han- 
disyd's  letti>i-.  sent  ni<  enclosed  in  Mr.  Popple's  letter,  re- 
lating to  some  aiuliei-irris>ci/,c(|  in  ■Ianiaiea,and  the  jirose- 
oution  tli'.i"U|Min.  ;ind  am  liiiiiil>Iy  of  opinion,  tliat  the 
GoviM'lioi' and  (^>iieciis(     iii>ril  there  In  v  <■  dojie  idl  that  l>v 


aw  ean  l)e  done.    |or  r 


efo\ er\    o 


f  thi-  aiulterjrris  for  the 


Queen;  for  a  jin-\  hii\r  it  ni  tlu'ir  piuer.  whether  they 
will  gi\('  a  giMieral  vi-rdicl.  or  a  Npecial  verdict,  and  the 
most  that  the  (^iieen  s  coun-el  can  do.  is  to  (h'.sire  thein 
not  to  take  up.ai  theiii  the  dt  n  iniinatioii  «if  matters, 
whiidi.  in  point  of  l.iu,  are  di-pntalih',  Imt  find  the  faetH 


speciiilly,  aii'l  -nonnt    tiie  |  ^i 


nl-  of  liiw    to  the  iudirment 


ofthet'oiirt  and  llii-.  I  nnder-iaml.  \va-  done  li\  the 
Qt'een's  Attornex -(ienerul  ami  ^lr  I'nodrick  ;  Imt  the  jii- 
ry  refi,-.eil  to  give  ii  special  verdiel,  and  foiuid  generally 
for  the  delendaiit,  air^iin-^t  the  (^neen,  'i'hi-  refractorine.sH 
in  the  jin"y  i<  often  tiiiie>;  seen  in  onr  (units  here,  in 
England  ,  and  winii  it  does  lia|»[ien  the  (^neen  s  v'onn>el 
are  forced  to  snhmil,  indc-s  they  can  hope  to  uet  a  morfi 
favoraMe  JMi's  retnincd.  and  then  iiidr<d  lhc\  move  for 
a  new  trial  ;  hut  in  i  In-  Lirand  (  Hin  I  of  .I.un.in  a.  I  nndcr- 
Htiind  It  iisualh   goi'sagain^it  the  Crown     when-  tiiere  w 


THE  KIN'G's  prerogative  ABROAD.         147 

the  least  .<lia(lo\v  f„r  ,«o  ^lohi- ;  ami,  therefore,  I  much 
question  whether  ^rantiii.t;  a.  new  trial  will  l.o  of  any 
avail;  in  all  likelih  ,.l  it  will  only  run  the  Queen  into 
greater  charges  and  expense-  lor  which  reasons  1  ^annot 
advise  anything  further  to  he  .lone,  than  what  has  been 
already  directed  and  attempted. 

James  Montague. 
^ov.  23.   17U9. 


imaica. 


(20.)  (,>>  thec^vheat  o/fa  „(,  au.I  no,w.,  in  Ja 
hiffhe  Af'>,nu>i.(rc,t,ral  NorfJu-,/. 

'!<;  the   Right  Honorahle    the    Lords    Commi.ssioners    of 
liadc  and  Plantations. 

May  it  please  your  I.onM,ips  ; 
Tn  ohedien..e  toynur   Lordships' ' commands,  signified 
♦^>  ""• ''.V  Mr'Popple,  I    have  considered  of  the  enclo..ed 

accamt  of  eschea.s,  uh.chy.u.r  L.rdships  received  IVom 

,      '   "■"    •^"•'•"'•'I'l    n,n.„lt,n.    with    his    ohservations 

-icon,    audi  do  mux    hunddy  certify  ^  our  L-rdships 

thaM.  anactpa...d2IstNoven>her,   I7(.:;,  entitled  an 

"•■H"'-  nns.Mg  a  revenue  to  II,,.  Ma,e>t  V,  ^c  ,  it  is  nrovi- 

''"'•""''"^^^'•"   '-•  M^'i-.;,  <   .-rents,    lines,  lorleit- 

"'vs  and  escheats,  arising  w, thin  the  Island  ..f  Jamaica 

as  the  impost  and  rev,  ..uetherehy  granted,  shall  he  an^ 
•'7    7'    7'7I'-'''''''-'''->''ir-t..fthe.o.ernment 

;"  "-''-'-"'•'-"  thecontingeu,,.harge,,lH.n.ofai,d 
''■'•'""--.Mitentorpurpo..e.  uhat.oe.a:  la.t  not 
:'l'— ..    ilc,   Mai-ty'H  power  of,.,,, loniu.  and  remit- 

t-.g  such  hnesandf.rli.itme-    -"1  (   t:  I  JoM  thereof  paid  ) 

■""'     I^^Mr'"I"i:.led   tot.e    fort  i  lie;,  |  „  ...S. 

,-'V.*'    ""■  '"-^^    '"■'t''.etion  <,f  die   I!.th   of    F,.|a„arv 

"  '",.:'"■  '•''^"'■•.nr.  restraining  Inn,   IV ..jling 

"•    'I'Hl.MlUttcd    to 


lit) 


tji 


ciciiuiUi,  tai  au  jic;;oujit  thereof  .shall  U- 


148 


OPINIONS  OF  EMINENT  LAV/YERS. 


Hi 


Briti'in,  and   directions   reccivod    tVom  tlionco,  I  ci\uiiot 
.say  unytliiii<r  coucoriuni,^  that  complaint    which  occasion- 
ed it,  or  how  that  complaint  was    snpportcd,  liaving  no 
acconntofit.  c\cci»t  wliat  a])i)cars  in  the  order,  l)y  which 
it  ai)pear^  to  have  arisen  Irom  persons,  who.se  titU'.s  had 
Iteen  tpiestioned  on  such  writs  of  escheats,  and  avoided  ; 
their  comphunts  hein-.  as  stated  in  that  order,  that  their 
titU'sto  tlieir  hinds  and  nejiroes  had  l»een  so  (lucstioned, 
notwitlistandini;'  (he\    had   held  ,ind  enjoyed  the  same 
many  years    which,   il'  witliont   title,    as   hy   the  deter- 
minations on  those  w  rits  it  apju-ars  to  have  heen.  it  wa.s 
not  a  distui'hance   oi-  oppression,  Imt    a  jnsi  prosecntion 
for  the  ri.iilit- of  IJie   ('mun.       Another  trrievance  was, 
that  when   the   title  oftlii'  Ciown  had  been    established, 
the    eschi'ated  c-tatc-  had  hccn  i:t;,iited    to    the  [irosecn- 
tors  and  inlin-iiici-.  \vhi<'li   I  tliink  al-o  not    'm  olij(>etion  ; 
fur  they,  that  had  discoNrr.'d  the  title  oi' (he  Crown, had 
reason  to   ha\e  a    jirt'l'ereiM'e   in    purchasing;    (he    same, 
whi(di  could  not.  Iiv  (he  .■ic(  i!iei«(ioned  in  the  s{atute,  he 
for  less  than  they  w.iv   \,dii,d  ,it  h\  (he  jury  tindinf; the 
I'scheat  :     and.    in   rc-.ird,  tin    pmlit,   of   (hose  esclieats 
are.  by  (hat    .\<t  (appruxcd  b\    Ury  Majesty.)  a ppropriii- 
tcdfor  suppnr(in--  (lir  -ov  .■iimiciit  of  (h;i(    Maud,  which 
hy  (he  repre-eiiCitioM.  i-   -(at-d    n..t    (,>  be    sullicient    for 
tha(    jjurpo^c       I  (I,,  lint  ~ce  any  objection  a-^ain.st  alter- 
in.ir  that  insii  uction.  and  permitting;  the  Covernor  (o  se'l 
from  tiNir    In  (ime.  a-   he  is  nllowed   (o  do   b\    that    Act. 
\Miicli  hadi  been  conliriiied  ,    he   beiiijj  satislied  that  the 


value   loiuid     |s     ;| 


rea-onable    value,  remitting    accou'.i  /* 


thereof,  from   (nne  (otnne,  tu  Her  Majenty. 

Kdw   Noktuey 
AuLiiKt  (i,  17ir,. 


THE  KINGS    PREROGATIVE  ABROAD. 


149 


(21.)  On  the  Queen's  right  of  quit-rents,  in  New  Yo?'k, 
f»>/  t/t(    ■■^(iint  livrtji^y. 

To  the  first  quare,  I  am  of  opinion,  the  second  pa- 
tfut,  confin.iin- the  ^nin  and  re.serving  a  quit-rent  is 
to  be  taken,  the  quit-rent  oy  the  first  grant;  and.  there- 
lore,  that  n.u.st  be  accounted  for  from  the  first  grant, 
the  hind  ))eing  charged  with  it. 

To  tlie  .s,,,„n.l  qiufre,  I  ani  of  opinion,  this  will  be  the 
same  as  the  other,  and  will  ascert^iin  the  quit-rent  but 
not  discharge  the  arrears  ;  and  the  words,  in  lieu  of  all 
otherqu>t  rents,  Reimport  no  more  than  that  ^he  lands 
are  to  be  lu.lden  un.ler  that  rent,  ar.l  under  no  other 
rent,  8erv„.e,  &c,;  and.  therefore,  no  of  er  duties-  &c  but 
that  .|u>.-rent,  and  the  arrear.  thereol,  can  be  demand-d 
lor  those  lauds. 

To  the  third  qua,;.  I  am  <.f  opinion,  tlie  writ  of  ce.s- 
•sivit  is.mK  where  a  tenure  is  .reated  bv  tlie  grant  in 
n"'-nMn,,  whi<h  conld  not  be  by  the  grants  before  Kin,^ 
Jamesih..  Secon.l  ,-ame  to  the  Crown,  he  U-ing  a  snb^ 
joct;  but  where  there  is  a  t.-nure.  as  bv  the  Crown  )the 
<''-'>^v"  ""t  l-ing  uithi,,  ,iH-  statute  n"  ^nia  ernptoro.  t.r- 
rar.nn.)  tl.e  writ  of-c-ssav-t  lies  Flowever,  th.- .ta...tes 
ot  Uestnnus.er  L',  and  (ll.u.ce.ster,  which  gave  tl...  writs 
<•!  "— :.Mt  not  bM^.ngb....nput  .  prarfce  on  the  set- 
tling that  rolony,  n..r  enartnl  th.-re  sin<v,  I  am  of  opin- 
ion, those  laws  are  not  the  laws    ,.  that  .olony. 

Kinv    NoHTlIK 

Julv  ;U).  1713. 


j     ' 


150 


OPINIONS  OK  EMINENT  LAWVEKS. 


(22.)  Mr.Faiu's  opinion  on  the  King's  right  to  trea-?- 
vre-ti'otr,  in  the  Buhanuis. 

To  the  Riglit  JIoii.,  the  Lords  Cniniui.v.si(.ner.s  for  Trade 

and  PhintatioiiH. 
M\'  Lords  ; 

Li  (.lK'(iic'iu't'   to  yuiir  Lordships'  commands,  signified 
to  in."  In-  Mr.  IV)i)ple,  I    have  considered   the  two  cases 
mei...oned  in  the  U'tter  of  Governor  Fitzwilliams,  dated 
♦he  12th  day  of  Noveinher  last ;  one  relatinj^  to  the  right 
of  administration  to  John  Sims,  a  nudatto,  who  die.i   in- 
U'state,  leaving  a  wife,  witiiout  any  rehitions  ;   the  other 
rehitiiig  to  .som,-  treasure  found  at  Providence,  hy  one  of 
the  inhahitjints  :  and  1  l)eg  h-ave  to  .say,  as  to  the  first 
case,  that  .John  Sims,  dying  intestate,  without  any  rehi- 
tions, the  m ;)iety  r.f  sucii  estate,  which  it  is  .slated  he  died 
intlie  pos.se.ssion  of  l)ecoines  the  ritdit  .d' tlir  C-own;  the 
other  moiety,   his  wife  will  l)e  eiitith  d  t..   ;.s  la-   l.ft   no 
children. 

As  to  (lie  other  c;is*.,  if  „,,  pi-r.^,,:,  can  Ic-ally  prove  a 
property  in  the  treasure  found,  it  will  he  deemed  the 
property  of  the  (.'rown. 

Fr.\n.  Fane. 

Feh.  T,    I ::;(;. 7. 


(2;i.)    Uu   .l'f"rn,;/-(i,nu'(il.\'„rthr,/.s^  opinion  of  the 
Qxitn's  right  to  rn,f„l  fish,  <,f  Xt,>    York. 

The  pleading  is  infor  ,a!  .c,  l.,,ih  >u\r<.  f,,,-  (i,sf  the 
I'"' •'"''♦•"■  -l<'|-.'M,l:„.t,  an.^;..gap.v.scriptio„  ,„  ihrin- 
hahifantsof  th..tou„  uf  .Su.lhtoii,  to  tak.'  uhajr,,  ,,n  the 
high  seas  and  ..oasts  ol  the  same  .u,.l  ..Mn^rt  them  o, 
th.-ir  own  u.so,  JH  id,  for  although  royal  fishes  mav  he 
cla.niL.i  bv  pre*::;-tion.  y.-ta  prescription  c.muyt  bc'ijud 


THE  KING'S  PREROGATIVE  ABROAD.         ISJ 

in  the  iiihiU)it;uits    mu]  N/.w  v     i    i    • 

«.-™  ..f  E„„a„,,  w       .r^ne  ;  ,,'r*  """"'  '"  '"^ 
ticii  can  ho  f  I.«  •  'neuu,rv,  no  presorip- 

hirr  thn    1  .    ^^'"''^  ''"^  Crown;  next  the  trave-s- 

nig  the  (liiy  and   year  InifJ  in  ♦!..    •   r  •         '"^^^-s- 

ul..,I...         •  r  '^"""  *''^'  '"^^rnmtion,  and  the 

Hhale.s  connn^r  t,,  his  hands  hy  lunUna  ami  hi 

-.;^in.  The  pro.ecuto...^.ep.i!::L:  ::::;: 

jvkMhat  n.yal  ii.sh  cannot  be  ch,!.  ned  but  bv  ^n    Z 

ucnunrcd  to,  bi.ranse  not  well  alle-ed 

Tlie  rejoinder,  denying  the  Que^n  cannot  be  diveated 
^^  grant,  ben,,  t..ken  !,  protestation  i.s  well      ^^  Ih 
that  beni-  matter  of  law  and  not  i'.M  ■        i  ■  ^^  ' 

'>"  the  traverse  of  th.  nro'        V  '  '"     ''"'"'"'^  '''''"^ 

mm  for  M  •"^■^'•'■'P^"^'Mva,sweIl,andno,K:ca- 

->n  fo.    the  pro.secut.,r',s  demurrer;  however,  the  plea 
of  the  d  ,„„,,,,^    b.in,  illM  am  ..f  opinion,    ud  J  r  ' 
ought  to  1h'  .i,n   ,n  for  the  t^ueen.  J""fe'"UK 

July  30.  1713.  ^^'"    ^'''""^"^^  • 

(240    ?/.^  <^nio„  ofthr  Attorn,,  a„a  SoUrifor-G^,,. 

Unj  or  A,,h,n^u^  Neuy;,>.nJho.f,  ,rhirh  ha^H-on  .n-ant- 
edto  6o'  ii.or,,,  f'ahrrt.  i,>    102.1 

T.MheKi,htno...>r.ble,  .he  Lords   CommisHoners  for 
Tra<ic  i.nd  IMantaiions. 

May  If  please  your  L.,7d,sin,H 

;,.'"■;■' "M.M,„.u ,,, „„,',■ '  , 

:;;::;":;■;'■ '"7'' - r,.,>. „,;„ 

tl..Lt,  ..^  a  ,i,,|,„,,r.:,i  u,  your   l,.,„|,|,i|„  „  „„,(,,,.  _" 


'11 

)l 


II 


l: 


LI 


152 


OPINIONS  OF  EMINENT  I.iWVKHS. 


great  imporUiico.  you  desired  our  opinion  upon  it ;  and 
Mr.  Pownall,  at   the  same  time,  was  pleased  to  send  us 
two  books  of  your  Lordships'  office,  the  (me  containing  a 
representation  made  by  the  Board  of  Trade  to  His  Majes- 
ty, in  1718,  relative  to  the  state  of  Newfoundland  ;  the 
other  ccmtaining  a  variety  of  authentic  papers,  some  of 
which  are  referred  to  in  the  said  petition,  and  which 
appeared  to  be  necessary  for  our  informatitni  upon  this 
occasion,  which  l3<X)ks  and  papers  are  herewith  returned. 
We  have  taken  the  said  petititm,  books  and  papers,  in- 
to  our   consideration,  and   we   have    been  attended  by 
Lord  Baltimore,  and  his  agents,  and  lieard  what  the^-  lud 
to  offer  in  support  of  the  said  petition  ;  as.  notwith.-tand- 
ing  the  determination,  in  lOCiO.  in  favor  of  tlu-  grant  in 
1G23,  there    is   nn  evidence  of  any  actuid  possession  of 
the  })rovince  claimed,  or  exercise  of  any  powers  of  gov- 
ernment there,  by  the  Baltimore  family  ;  on  the  contra- 
ry, it  is  most  probable  that,  at  least  iVoni  the  year  10:58, 
they  have  been  out  of  possession.     And  as  from  the  _)ear 
IGGl),  there  have  been  numy  proceedings,  which  ajipear 
from  the  said  books  and  papers,  and  even  an  Act  of  Par- 
liament, passed  in  the  reign  of  King  William  the  Third, 
inconsistent  witli  the  right  now  set  up,  without  taking 
the  least  notice  thereof,  and  without  any  (daim  or  inter- 
position on  the  part  of  the  Baltimoie  family;  and  as  tlie 
Kings  api)rol)ation  of  a  governor  ought  to  Iw  in  conse- 
qtience  of  a  clear  title  of  proprietoj'ship,  we  are  hinnbly 
of  opinion,  that  it   is  not  advisal)le  for  His  Majcstv  to 
comply  with  th<'  said  petition. 

I).    HVPKH. 

April  5,  I7;")4.  VV'.  Mi;kr.vv. 


rUK   KING'ti  PREROGATIVE  ABROAD.  153 

on  the  Queen,  right  of  escheat,  to  an  estate  in  Jamaira 
My  Lord  ; 

In  obedience  to  you,  Lordslnp-,  commands,  I  have  pe- 
i--^e<l  an   Act,  passed  in  Januuca.  to  enable  Gary  Bodle 
-d  ethers,  to  sell  lands  &c.,  and  anUuunblv  of 'opinion 
that  Act  ,s  not  fit  to  be  confirmed  ^ 

The  Act  recites  that  Rin,.  Charles  the  Second  granted 
wo  parcels  of  land,  containing  one  th,  -.sand  one  hun 
dred  acres,  ard  four  hundred  acres  to  Dorothy  «,„„;.„,■ 
-ul  her  hen-s  forever;  and  that  Dorothy  Bannister  con- 
veyed the  same  to  Dorothy  Wait  and  her  heirs  forever 
ana  U.at  Dorothy  Wait  afterwards  n.arried  with  Theo-' 
doreCary,  Esq. 

The  Act  likewise  recites,  that  King  Charles  the  Sec 

ond  granted  five  hundred  acres  of  l.nd  to  Theodore  Car; 

-><     -  iu.rs.and  .      ^  ThcnloreCary  .lied  without  heirs 
and  tha.K.ng  J,,...  ,,,,,,,„,         ^^.^. 

of  escheat,  dated  the)  ah  d,..  of  January,  in   tl,e  !;.!,.;;; 
year  onus  ..e,gn.  granted    to    Dorothy    Cary.   and   dohn 

B.Hle,an.l,lK.u-h..i,s,  the  said  five  hundrclaeres 
J^'y^-'^T'7  '-it.'s,  that  John  Bo,lle  intennarr:  -d 
-H.    Khzabetl.  tlny.rand-d:n.ghter<,r  tbesaid  Don.hy 

!:7;.T,^^;^"'' '•'''''■  (^"^")  •'''''•' -'''-^'-'-^ 

adtl.t   D.u-othy(-.,,    by  her  will,  gave  t...f,.bn,., nd 
TI.ou,as  MX  h,u.dred   pounds  .aeh,  at  their  ages  .,f  ,.ne- 

""'-^"*;'".-  -"»  ''"  t>-  -t  of  her  e.state,  land.s.  tone- 
>pts  ^-,t..  the  saI.lC„vM,.dle,fi>r  his  lift.,  and  to 
''-»'•■■'-•<  Ins  bnd,l:nvr„lly„.  be  ^.gotten,  with  sueh 
••--'n.h.rs  over.  n.  dH.uh  ..f  i.s.ue  of  C«ry,  as  in  the 
;•'  ■';;■  --t.oned.  TI..  .X..,  Ukewise  recites,  that 
•''''''''^"'•''•'    '''•••''^''•■'■'''•''-  -.d  Theodore,  IK  I. .on 


)  11 


i 


^  I' 


154 


OPINIONS  OP  EMINENT  LAW^  ERS, 


m 


I  4 


tracted  great  debt?*  in  endeavoring  to  improve  the 
estate  ;  and  that  Cary  Bodlo,  hy  reanon  of  the  entail  in 
Dorothy's  will,  coidd  not  sell,  without  an  act  of  the  As- 
sembly for  that  purpose  ;  and,  thereupon,  trustees  are 
appointed  to  sell  one  thousand  one  hundred,  four  hun- 
dred, and  five  hundred  acres,  and  the  purchasers  are,  by 
the  Act,  secured  in  the  enjoyment  thereof.  This  Act  I 
take  to  be  liable  to  the  following  objections  : 

1st,  The  five  hundred  acres  are  recited  to  have  been 
escheated  to  the  down,  on  the  death  of  Theodore  Cary 
without  heir,  and  the  grant  thereto!",  by  King  James,  is 
mentioned  to  be  after  his  abdication,  viz  :  on  the  14th 
day  of  January,  in  the  fourth  year  of  his  r<Mgn.  If  no 
suflicicnt  grant  has  l)een  made  since  the  escheat,  the  ti- 
tle remains  still  in  Her  Majesty. 

2d,  Supposing  Dorothy  Cary  to  have  a  good  title, 
and  the  three  several  parcels  well  devised  by  her  will, 
yet  I  sec  no  necessity  for  an  Act  of  Assembly  to  enable 
Cary  Bodle  to  sell ;  for  though  tlie  i\v>t  words  in  her 
will  devised  the  estate  to  hiui  during  his  life  (mlv,  yet 
the  imuiediate  following  words  (and  to  the  h  Mrs  of  his 
body  lawfully  to  be  begotten.)  eidarge  his  estate,  and 
make  him  tenant  entail,  and,  con.>^c<[iicntly,  he  has  power 
to  sell  without  the  aid  of  an  Act. 

3d.  I  conceive  the  want  of  a  saving  clause  in  this  Act, 
to  l)e  a  further  objection  against  Her  Majesty's  approv- 
ing the  same. 

iSl.M.    IIahioirt. 
July  12,  1707. 


|i      u.  i. 


THE  king's  prerogative  ABROAD. 


155 


(20.)   The  opinion  of  Mr.  Jmhmn  on  the  Kinfs  right 
to  the  ivhitepine  trees  growing  on  the  Ktnnehech  River. 

To   the    Right   Honorable  the  Lords  Commis«ioners  for 
Trade  and  Phintations. 

May  it  please  jour  Jiuidship.s  ; 
III  humble  obedience  to  your  Lord.ship.s'  commands 
signihed  to  me  by  Mr.  Pownall's  letter  of  the  IGth  iii- 
Ntant,  I  have  taken  int.,  con.sideration  the  paragraph 
extracted  from  a  letter  of  the  Surveyor-(;e„eral  of  His 
Majesty  s  woods,  in  America,  inse.ted  ther-in,  to-ether 
with  the  two  law  reports  acv<.mp;un  in-  the  same" 

The  paragraph  .states  a  claim  tnade  by  the  proprietors 
ol  an  extensive  tract  of  land  up„n  bnth  sides  of  Kenne- 
beckl?,ver,  on  which  there  is  an  abundant  growth  of 
the  best  pine  tind.er  and  ^vhich  tract  the  pn.prietors 
allege  to  be  private  property;  not,  as  I  conceive,  be-  " 
caiLse  It  IS  parcel  of  til,,  province  of  Maine,(within  which 
only  part  of  it  lies.)  b-  t  because  it  is  not  the  propertv  of 
the  Province  of  the  Massa-'husetts  Ba v,  nor  indeed  <.f 
any  other  corporate  bodv.  but  i.  the  propertN  of  a  ,set  <.f 
private  parties 

I  iiave.  likewi.-e,  considered  tlie  cpiestion  staled  in  Mr 
Pownalls  letter,  namely,  whether,  by  the  provisions  of 
the  statute  ol  the  se.'ond  of  Ceorgc  the  Second,  Cap  3-3 
white  pine-trees,  of  tlu- diameter  of  tweutv-four  inches 
-•upwards  ut  twc.lvc  inrhc.  fro,,,  lb.  ground,  gn.win.^ 
upon  anv  tract  of  laud  po.ssc.^.sed  under  a  ^n„,t  of  ,h^ 
Council  „f  Plymouth,  may  or  may  „ot  lu-  ielled,  with- 
-'t;.  licence  frou.  theC.own.  audam  liumblv  of  opinion 
that  ,n  case  the  .s,,il  or  tract  ..„  uhich  such  white  pine' 
trees  g,-ow  w  i.  piivate  property  before  the  Tth  ofO.to- 
bcr,  Iti'JU,  they   may  be  cut  without  a  licence  Irom  the 


'f  k 


ill 


fr 


V    ■;.    * 


156  OPINIONS  OP  EMINENT  LAWYERS. 

Crown,  notwithstiinding  any  provision  of  the  statute  of 
the  2(1  of  Geor^re  the  Second. 

That  Act  appears  to  lue  to  have  1)eeu  Intended  to  ob- 
viate^ the  doubt  that  f^ave  occasion  to  the  question  stated 
in  1726,  to  the  then  Attoi-nej-  and  Solicitor-General  foj- 
their  joint  opinion,  whose  answer  is  contained  in  one  of 
the  reports  transmitted  to  im"  :  that  doubt  arose  upon  the 
8th  Geo.  I.,  which  was  alleged  to  amount  to  a  release  of 
the  Crown's  right  to  part  of  the  reservation  contained  in 
the  Charter  of  the  Massachusetts   Bay.       This  doubt  is 
now  totally  removed,  and  the  single  question   that  can 
occur  on  the  2d  Geo.  II.,  i.s,  whether  the  soil  in  question 
was  actually  private  property,  before  the  7tli  of  October, 
1690 ;    not  whether  it  is  within,  or  not  within  a  town- 
ship. 

•  The  rlaim  ofthe  Kenncbeck  company(the  proprietors 
mentioned  in  the  Surveyor-General's  letter)  is  founded 
on  a  grant  from  the  Council  of  Plymouth,  long  antece- 
dent tn  tho  7th  (\-t.)ber,  1690,  and  I  am,  therefore,  of 
opinion,  that  in  case  their  title  be  well  derived,  (of 
vvhicb  I  ,1,.  nni  pretend  to  judge.)  tliey  are  exempt  from 
the  penalties  .,1'  the  2d  Geo.  II,  I  should  have  been  in- 
clined to  think  so,  had  that  companybeen  a  corporation, 
'>"t  this  i^'  nnt  now  the  (piestion,  as  they  are  a  mere' 
partnership. 

But  I  think  it  my  duty  to  remark  to  j-our  Lordship,<5. 
that  alth.mgh  white  pine-trees,  growing  upon  the  soil 
po8ses,>st.d  by  private  persons,  under  a  grant  of  the  Coun- 
cil of  Plymouth,  are  not  the  objectj^  of  pn-scrvation  un- 
der  the  2d  of  G.-o.  I[  ;  v.t,  i,j  ,ase  th.y  do  not  gn.w 
within  the  limits  ,)f  .some  township,  they  .rm  lo  come 
within  tlu.  provisions  of  the  8th  of  Geo.  j..  (',,,,    ]•) 

Mav  23.  1771.  «„.„     i 

'  lUCH.     .IaCK.S(,N 


THE  king's  prerogative  ABROAD. 


167 


(27.)  2he  opinion  of  the  same  conned  on  the  construc- 
tion of  the  8  Geo.  I.,  for  the  preservation  of  tJce  white, 
pi/ie  tret.^  in  New  England. 

To  the  Ri-ht  Honorable  the  Lords  Commissioners  for 

Trade  and  Plantations. 
My  Lords; 

In  obedience  to  your- Lordships' commands,  which  I 
had  the  honor  to  receive   from  Mr.  Pownall  the  30th  of 
last  month,  I  have  considered  th,  clause  of  the  Act  of 
the  8th  of  Geo.  I,  Cap.  12,  intended  for  the  preservation 
ot  ^vhlte  pine  trees,  in  several  Provinces  therein  named, 
in  America,  and  am  ot  opinion,  that  white  pine  trees' 
growing  on  any  lands  in  the  Province  of  Massachusetts 
Bav,  not  ciocted  into  a  township,  cannot,  under  the  pro- 
visions and  ivservatious   of  that  statute,  be,  inanvca.se 
cut,    felled   or   de.stroyed,  without  a   licence   froin    the' 
Crown. 

I  beg  leave  t..  add,  that  I  conceive  the  statute  .f  2d 
Geo.  IL,  Cap.,  .35,  ha.s  not  removed  the  restrictio.  .  im- 
posed by  the  former  Act,  but  has,  on  the  contrarv  still 
narrowed  the  right  of  felling,  to  such  white  pin^  Irees 
only,  a.s  grow  on  private  property  :  and  (by  an  explana- 
tion of  the  Province  Charter)  in  the  ca.se  oi  trees  of  a 
certam  description,  to  such  as  grow  „n  land  that  was 
priv.nte  i.roj»erty.  before  the  7th  of  October,  1090,  I  take 
it,  that  as  the  law  now  stands  : 

1:  No  man  can  n.t  white  pine  trees  in  anv  part  of 
America,  without  a  license,  unless  thev  grow  i.n  private 
pro})(.'rt  \ . 

li,  Not  in  Nova  .<;cotia.   New   England,  New*. Jersey, 
"i-  New   V.,rk,  unless  they  grow  withia  a  ti.wn.ship. 
•^.  That  in  th(5  Province  of  Massachusetts  Bav,  no  man 


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158 


OPINIONS  OF  EMINENT  LAWYERS. 


can  legally  cut  white  pine  trees,  twenty-four  inches  di- 
ameter twelve  inches  from  the  ground,  unless  they  both 
grow  within  a  Township,  and  on  land  that  was  actually 
private  property,  prior  to  the  7th  of  October,   1690. 

How  far  it  may  be  expedient  to  continue,  or  remove 
the  restriction,  as  to  property  without  the  bounds  of  a 
Township,  or  in  any  other  respect,  is  for  the  considera- 
tion of  your  Lordships  and    he  Legislature.       It  is  cer- 
tainly obvious,  that  though  the  law  gives  a  protection  to 
such  trees   growing   on  private   property,   which  they 
would  not  otherwise  have  had,  it  deprives  them,  at  the 
sanu-  time,  of  another  protection  (the  vigilance  and  care 
oi  the  owner)  that  might,  perhaps,  have  been  more  effi- 
cacious, as  experience  has  shown  it  to  be  in  most  other 
cases. 

KuH.  Jackson. 
June  5,  1771. 

iiecoml.     Of  the  King's  power  of  Taxation. 

(1.)  The  opinion  of  five  Attorney-General  Northey 
that  the  Queen  might  direct  to  be  levied  a  t,uv  on  the  con- 
qiiertdjxirt  of  St.  Kitten  in  1704. 

In  obedience  to  your  Lordships'  commands,  signified  to 
me  the  4th  inst.,  by  Mr.  Pi.pple,  I  have  considertd  of  the 
annexed  presentment  of  the  Commissioners  of  Her  Maj- 
esty's Custcmi..,  an.l  nNo  of  theextraet  of  Col.C.)dringt.m'8 
in.vtruetions,  and  am  cf  opini,,,,,  that   those  instructions 
are  not  material,  in  any  Hort,  (.,  the  mat.e.  coMtaimd  in 
the  presentment,  it  being  only  a  power  to  lei  and  dispoH« 
of  lands.     As  t.)  the  presentment  of  the  Commissioners 
of  the  Customs,  I  a.n  of  opinion,  that  the  officers  of  the 
English  part  of  St.  Christopher's  had  no  authority   by 


TKE    king's    PHEROOATIVB    AJHO/D.  IgQ 

vfrtue  or  the  Plantation  Act,  m«de  there  for  the  four 
and  .  half  per  cent   on  ^ood,,,   to  levy  the   ^Jfor 
good,  expor,„d  from  that  part  of  St.  Christopher-,  lat^W 
gamed  byconque.t  from  the  French,  that  law  extend^ 
-g  only  to  .„ch  part  of  St.  Chi,topher',  a.  Mo^u, 
the  Cro.,n  of  England,  when  that  law  wa,  m,de     b„^ 
Her  Nl.je,ty  may,  if, he  shall  be  «.  plea^i,  under  her 
great  Seal  of  England,  di«ct  and  command  that  the  like 
duty  be  lev,ed  for  g«»i,  ^  be  exported  from  the  con! 
que^    p.rt ;  and  thatcommand  wiirbe  a  law  thert,  Z 
M..je,ty,  by   „er   premgative,  being  e^bled   U,  make 

ir«;at'b;"'>.'"r''   P""*"  "'"•'-^^ --^  =on,ue.t,™d 
all  that  shiill  inhabit  therein. 

Jan.  13,  1703-4.  Edw.  Northev. 

haUytake   off  the  4unj   ofjl,..  ^UUn^^er   tonZ 
e^pt^jrorn  payiny  tl.  .Uuy  of  ^  .ol.  ^,.  Z^ 

To  the  Queen's  moet  excellent  Majesty. 

May  it  please  your  most  excellent  Majesty  • 

My  I..rd  Vi«„„„tB„lingbroke  having  .ig„iM  your 

Majesty    commands  ,.,  me,  to  consider  „f  the  bu„„e« 

oftbe  duty  of  five  shillings  per  ,„„,  laid  upon  .Jnch 

.h,p.  he,.  ,„  England,  and  the  im,K„ition  „f  fi*;;,  sol.  ^ 

>o  r  Majesty  „,y  „p„,ion,  wbcUier  the  «id  duty  ,„  five 
.l..ll.ng.|»,r„,„,  l.,i„g  unappropria-ed  M,oney,  your  Mai 

I. n.    that    the  Wonch  ,ako    off  fifty  ,„l,  ^„    „„ 


160 


OPIWIONS   OP   EMINENT   LAWYERS. 


whether  the  words  of  the  Act  must  be  literally  observed, 
and  the  duty  of  five  shillings  per  ton,  on  French  shipping, 
cannot  be  taken  off  till  three  moiths  after  the  taking  off 
fifty  sols  per  ton  in  France.  And  I  am  humbly  of  opin- 
ion, that  the  duty  of  five  shillings  per  ton,  bei  'j;  unappro- 
priated, and  the  French  having  ffectually  taken  off  the 
fifty  sob  per  ton,  on  English  shipping,  your  Majesty  may 
lawfully  direct  the  Commissioners  of  the  Customs,  to  for- 
bear taking  the  said  five  shillings  per  ton,  on  French 
shipping  for  three  months,  and  then,  by  the  Act  of  navi- 
gation, laying  that  duty,  the  same  will  detennine. 

Edw.  Northey. 
Sept  30, 1713. 

(3.)  See  th£  opinion  of  the  Attorney  o/tid  Solicitor-Gen- 
eral, Yorke  and  Wearg,  on  the  King's  power  of  Taxu- 
tion  over  conquered  countries* 

Third     Of  the  King's  Grants. 

(I. )  The  opinion  of  the  Attorney-General  Treby,in 
1689,  rw  a  grant,  for  life,  of  And  it  (yr  of  the  Virginia 
reventie. 

[A  letter  to  the  Attorney-General,  with  Mr.  Ayleway's 

patent.] 

Council  Chaml>cr,  June  21, 1689. 

Sir,— The  Right  Honorable  the  Lords  of  the  Com- 
mittee for  Trade  and  Plantationw,  having  considered  the 
petition  of  Mr.  RoI)ert  Ayleway,  referred  to  their  Lord- 
whips  by  His  Majesty's  order  of  the  3d  of  May  lawt,  pray- 
ing to  be  admitted  to  the  o.Tice  of  Audit4)r-General  of 
Virginia,  pursuant  to  letters  patent  in  that  k'hulf,  their 
Lordships  have  ordered  a  copy  of  the  said  letters  patent 


THE  king's  999ftGQAriVE  ABROAP.  1^1 

to  be  Beat  to  you  fov  your  opinion,  whetlier  t^ie  peti- 
Wr  be  legaUy  .teted  in  the  .aid  office,  and  whether 
he  be  not  obhged  to  give  his  personal  attendance  in  the 
e^utior  thereof,  in  Virginia,  at  W  if  Hie  Majesty 
ahall  require  it.  "^    ^ 

T  ,  ,  -June  25,  1689. 

I  have  perased  the  letters  patent  of  January  16,  in 
the  t^ent.eth  year  of  the  reign  of  King  Tharles     he 

the  offi  '       T\'  '''  "^'  ""^"^  ^^^*"^*  '^  ^«»>-t  Ayleway 
he  office  and  place  of  Auditor-General  of  Virginia;  for  h^ 

and  that  he  may  execute  the  place  by  deputy,  withou 
personal  attendance,  provided  hi.s  deputy  be  sufficient. 

Geo.  Trebv. 

(2.)  Mr. Lanihs opinion  on  tlw  appointnmit  of  SIuriiTa 
m  Aew  Jerftey.  •*' 

J'o  the  Eight  Ho,,.,  the  Lords  Con,mi,m„„cr»  for  Trad. 

iiud  Plonlationn. 
Hiy  Ijordn : 

I..  ob«li«,co  t.,  y„,u.  Lord»ln,,»'  oonunand,-  ,i.-„med 
tome  by  Mr.Hiir,  k-l.er  of  the  18lh  of  Julv  Ia.t1 
have  reco„,idered  „n-Actp„«d  ,„  New  Jersey,  h,  Jan,,. 

fl-  u  th,.  C„U,„.v  „f  N,„  ,,er„ey.l„gi.,  ,eeuri.,,  -.M 

take  the  oath,  or  alllrn.ati,.,,  .herein  direete,!,  for  the  J„e 

.l.>oh„rge  of  ,_l.eir  ofliee,,  and  to  p,.,ve„t  their  „«,  long 

continmiMcc  therein.  "  ^ 

I  fiiHi  in  n,y  report  n.ade   to  your  Lord«lxip«  the  :i3d 


162 


OPINIONS  OF  EMINENT  LAWYERS. 


I 


of  January  last,  that  I  made  no  ohjectron  to  this  Act  in 
point  of  law,  as  it  appeared  to  me  that  Acta  of  the  like 
nature,  in  r^^^ard  to  sherifts,  lioA^e  passed  in  some  of  the 
neighboring  Provinces,  which  have  been  confirmed  here, 
and  it  is  upon  the  plan  of  those  Acts,  that  this  Act 
seems  to  ha\'e  been  framed. 

As  for  the  reasons  of  this  Act  beinj;  passed  within 
this  Province,  the  Governor,  who  gave  his  assent  there- 
to 1  suppose  has   informed  your  Lordships,  pursuant  to 
his   instructions,   and   it  seems  very   proper  he  should 
have  done  so,  as,  by  this  Act,  the  limiting  the  time  of 
the  continuance  of  a  sheriff  in  his  oftice,  is,  in  some  re- 
spect, restraining  the  power  he  derives  from  the  Crown 
of  appointing  sheriHs,  which,  before   tbi.^  Act  pa.ssed, 
was  without  limitation,  r.nd  .so  was  the  power  of  the 
Crown  in  England,  formerly  ;   but  by  several  Acts  that 
have  been  pa.s.sed  here,  the  Legislature  hive  liinited  the 
time  of  a  sheriff  serving  in  his  office  :    Therefore,  it  ap- 
pears to  nie,  that  as  some  of  the  neighI>oring  '^'rovinces 
have  found  r<  a.son   to  pa.ss  Acts  of  this  nature,  whic'- 
are  now  subsisting,  and  as  the  liCgislature  here  have  also 
foi:nd  reason  heretofore  to  pass  A(  ts  limiting  the  time  of 
a  sheriff's  continuiim  e  in  his  office,  that  there  mav  have 
been  rv     'Us  to  induce  the  Legislature  of  this  Province 
to  do  the  same;  all   which    must    he  suljmitted  to  vour 
Lordships,  and  from  the  information  \ou  have  rc'eived 
how  far  you  think  proper  to  reconunend  the  confirming 
of  this  Act. 

Mat.  Ijamb. 
Lincoln's  Inn,  Sept.  30.  1741). 


a 
1^ 


THE  king's  prerogative  ABROAD. 


1G3 


_  (3.)  Jfr   Fanes  opinion  on  the  Khu/a pow^r  to  con. 
pm.  the  fiths  to  land  in  Connecting 

To  the  Right  Hon,  the   Lords  Commissioners  for  Trade 
and  Plantations. 

My  Lords  ; 
In  obedience   to  yonr  Lordships'  commands,  signified 
^  mo    y  Mr.  PoppU>'s  letter  transndttin,  to  n.e  copies 
ol  the  Charter  ot  Connecticut,  and   the  petition  of  the 
^oi^s  of  that  Colony  ;  and  al.,,   the   nu.norial  o^  Mr 
>Mnthorp;   and  desirin;,^  my   opini(,n,  whether  Hi.  M-i' 
josty  can,  hy  virtue  of  his  prero,,ative,  an.l  without  .he 
assistar.ce  of  Parliament,  gratifv  the  said  Colony  i„  their 
request  ?     I  have  considere  1  of  the  san.e,  and  he.  'eave 
to  observe  to  your  Lordshi,  s.  that  I  .annot  prettmd  to 
Hay  whether  the  Kin.  by  v.  tue  of  his  prerogative  can 
<  o  w,.,t  ,s  desired  by  the  pet  it  ioners.     But  I  umst  submrt 
't  io  your  Lordships'  consid,  n-Hon,  supposing  the  King 
had  a  power,  by   his   prerogative,  of  gratifvin.  the  re 
quest  of  th.s(Jolony,  whether,   under  the  eiVeumstanees 
"t  this  ea.e,  ,t  wouM  not  be  more  for- His  Maje.tv's  ser 
vice,  to  tnke  the  assistance  of  Parliament,  as  that  meth- 
od wdl  be  the  least  liable  to  objc  ction.  as  well  as  the  most 
certain  and  efi;.tual  manne.   of  gratifying  the  request 
ot  tJie  petitioners. 

V  1      >>.    ,  Yr.k's.  Fane, 

November  24,  1730, 


Hi 


II 


itiii  > 


¥ 


li 


164 


OPINIONS  OP  EMINENT  LAWYERS. 


(4.)  Th^  opinmi  of  (lie  AttorMy  and  SoUcitor-Oene- 
ral,  Ryder  and  Murray,  on-  the  King's  right  to  make 
new  grants  of  land  in  New  Hampshire. 
[New    Hampshire. — State  of  tiic  case  with  respect  to 
certain  townships  and  tracts  of  land  granted  by  the 
governments    of   the    Massachusetts    Bay   and  Con- 
necticut, in  New  England,  which  townships  and  tracts 
of  land  are  now  part  of  the  Province  of  New  Hamp- 
shire, by  the  determinination  of  the  boundary  line 
between  that  Province  and  tlie  Province  of  the  Massa- 
chusetts Bay,  in  the  year  1738.] 

Disputes  having  lor  a  long  time  subsisted  between 
the  Provinces  of  the  Massachusetts  Bay  and  New  Hamp- 
shire, with  respect  to  their  boundaries,  in  1733  a  peti- 
tion was  presented  on  behalf  of  the  Province  of  New 
Hampshire,  jjrnying  that  (Commissioners  might  be  ap- 
pointed to  ascertain  the  boundaries. 

Upon  hearings  of  both  parties  l)efore  the  Attorney 
and  Sdlicitor-CJenerrl,  the  Board  of  Trade  and  the  Coun- 
cil, His  Majesty  was  pleased,  J)y  his  order  in  Council  of 
the  9th  of  February.  173(1,  to  direct  that  a  couunisHion 
phouid  be  i)rep.ire.l  and  pn--<  under  the  (neat  Seal,  Au- 
thorizing C()mini.-«sioners  t.)  mark  out  the  cli\iding  line 
between  the  Provinces  oi'  the  Mas.><aehupettfl  Bay  and 
New  Hampsliire,  giving  liberty  to  either  party  therein, 
who  though^  thenisi  Ives  aggrieved,  to  appeal  therefrom 
to  His  Majesty  in  (,'ouncil.  In  pursuance  of  His  Ma- 
jesty's said  counuissiou,  Conimissioners  met  and  reported 
tiicir  dettM-uiiuation  specially,  ui)on  wliicli  botli  Pro- 
vinces appealed  to  H's  Majesty  in  Council;  and  atter- 
wards  tlu'ir  Ln;il<!rps  rcjmrtcd  to  His  M.ijestv,  as  their 
opinion,  that  the  northern   lx»unduries  of  the  Masaachu- 


'^ 


THE  king's  PREROOATSVB  ABROAD,  165 

setts  Bay  are  and  bo,  a  similar  carve  lino,  pnrsuing  the 
course  of  Merrimac  River,  at  three  miles  distance  from 
the  north  side  thereof,  beginning  at  the  Atlantic  Ocean, 
and  ending  at  a  point  due  north  of  a  place  in  the  plan  re- 
turned by  the  said  Commissioners,  called  Pantuket  Falls, 
and  ..  straight  line  drawn  from  thence  due  west,  crossing 
the  .said  river  till  it  meets  with  His  Majesty's  other  gov- 
ernments ;  and  that  the  rest  of  the  Commissioners'  said 
report  or  determination,  be  affirmed  by  His  Majesty.    In 
1738,  His  Majesty  was  pleased,  with  the  advice  of  his 
Privy  Council,  to  appro-e  of  their  Lordships'  report,  and 
to  confum  it  accordingly;  in  consequence  whereof,  the 
line  hns  uoen  marked  out. 

In  the  years  173o  and  1736,  while  the  appeals  from 
b..th  the  Massachusetts  Bay  and  New  Hampshire  were 
ciependh.j.  hvt'nve  His  Majesty,  the  General  Assembly  of 
the  Massaojaisett.-.  Bay  granted  above  thirtv  townships 
between  the  rivers  Merrimac  and  Connecticut,  which 
townshii)s,   upon  the  running  of  the  l)oundary  line  in 
1738,  fell  within  the  Province  of  New  Hampshire.    The 
conditions  (.l"  these  grants  wore,  that  the  grantees  should 
ttle  the  .said  townships  within  three  years  after  the 
date  of  thoir  respective  grant* ;  but  this  condition  ha* 
been  perfofniod  by  very  few,  if  by  any,  of  the  grantees- 
no  obligation  t:)  pay  quit-rents,  or  a  reservation  of  pine 
trees  Ht  for  the  .-service  a,nd  supply  of  His   Majesty's 
navy,  ai-e   inserted  in  any  of  those  grants,  although  no 
grant  ought,  in  good  policy,  to  be  made  of  anv  lands  in 
any  part  of  North  America,  without  both  the.se  provi- 
Mons,  whi,.,h  have  been  thought  of  so  much  iniport^uice. 
and  so  absolutely  neces-^ary  ti)r  the  public  service,  that 
Mr.  Wcituorth,  His  Majesty's  Governor  of  New  Hamp. 
•liire,  was  pariiculwly  iiwUuQtwl,  in  the  y^mr  1741,  nffver 


166 


OPINIONS    OF  EMINENT    LAWYERS. 


If  m>  T 


to  pass  any  grant  of  lands,  without  enjoining  express 
conditions  of  cultivation,  the  reservation  of  quit-rents, 
and  the  preservation  of  such  pines,  as  are  of  size  for  the 
use  of  His  Majesty's  :iav y. 

There  are,  also,  about  sixty  thousand  acres  of  land 
situated  on  the  west  side  of  Connecticut  River,  Avhich 
were  purchased  by  private  persons  from  the  government 
of  Connecticut,  to  whom  that  land  had  been  laid  out 
by  the  government  of  the  Massachusetts  Bay,  as  an 
equivalent  for  tw^o  or  three  townships  whidi  the  Mas- 
sachusetts Bay  purchased  from  Connecticut  govern- 
ment. This  tract  of  land,  by  the  determination  of  the 
boundary  line  in  1/38,  is  become  a  part  of  Now  Hamp- 
shire, but  the  proprietors  of  it  are  subject  to  no  condi- 
tions of  improvement,  and  the  land  lies  waste  and  uncul- 
tivated. 

Question.— Whether  the  Crown  can  resume  the  lands 
granted  by  the  Province  of  the  Massachusetts  Bay,  un- 
der condition  of  cultivation,  those  lands  being  now  be- 
come  a  part  of  New   Hampshire,  by  the  running  of  the 
boundary  line  in  1738,  in  cases   where  the  proprietors 
have  not  performed  the  condition  of  t.ieir  grants  ?  and 
if  the  Crown  can,  what  is  the  most  advisable  and  regu- 
lar method  of  making  such  resuinpticm  ?      Whether,  in 
the  case  of  the  lands  granted  away  by  the  Province  of 
the  Massachusetts  Bay,  to  particular   persoi.s,  without 
any  condition  of  cultivation,  the  Crown  can  now  enforce 
the  proprietors  of  such  Lnd.    u)  cultivate  them,  or  oblige 
them  to  take  these  lands   uikKt  new  grants,  upon  the 
said  lai.ds   being  made  a  part  of  the  Province  of  New 
Hampshire,  by  the  determination  of  the  boundary  line 
in  1738  ? 

We  are  clearly  of  opinicn,the  Crowa  may  resume  the 


THE   king's  prerogative  ABROAD. 


167 


lands  granted,  on  condition  of  settling  within  three  jearn 
where  there  has,  in  fact,  ^^ecn  no  settlement.      With  re- 
gard to  land.s  grante<l  hy  the  Ma.s.sachusetts  Bay,  with- 
out any  such  express  condition,  where  there  ha.s  been 
no  settlement,  us  they  appear  now  to  have  been  no  part 
of  that  Province,  their  grants  are  in  themselves  void  as 
against  the  Cn.wn,  and  there  appc^ars  no  gronnd  to  sup- 
port  them,  but  on  the  foot  of  the  direction,  which  we 
find  to  have  been  given  in  an  order  of  Council  ol  the 
22d  of  Jjinuary    1735,  when  the  commission  for  mark- 
ing the  dividing  line  between  the  two  Provinces  was 
first  directed,  viz  :  "  that  due  care  should  be  taken,  that 
private  property  might  not  be  affected  by  it."     We  do 
not  find  that  this  direction  was  continued,  either  in  the 
order  of  the  9th  of  February,  1730,  on  which  the  present 
commission  issued,  or  in  the  commission  itself;  or  that 
the  Commissioners  have,  in  their  report,  taken  notice  of 
any  such  private  rights;  or  that  they  are  saved  in  the 
order  of  Council,   that   establishes   the    boundary  line. 
However,  considering  the  manifest  intent  of  thJse  sort 
of  gmnts,  whether  appearing  from  the  general  nature  or 
the  particular  recitals  or  considerations  of  them  ;  that 
the  country  may  be  settle,!  and  inhabited,  and  the'  tacit 
condition  attendant  up,.u  tliem  ;  that  the  lands  should 
be  settled  in  n  reasonable  time  ;   we  think  due  care  will 
be    taken  of  the   private    property  arising  from  these 
grants,  if   His  Majesty  shall  be  pleased  to  give  these 
sort  of  proprietors  a  reasonable  time  to  come  in,  and  ac- 
oopt  new  gniius  upon  terms  of  settling  the  lands  with- 
in   a   cert^iin    time,    reserving   the  old    (piit-rent,    and 
pines  fi!   for  His  Majestv's  navy;   andinca.se  of' their 
not  accepting  these  terms,  His  Majesty  may  resume  the 
lands, 


•  I 


|»fi 


«MI 


168 


0Pl>tlO*JS  OF  EMLNGIvr  r,AWVER«. 


The  proper  mamier  of  making  sucli  ivsumptitHi,  alter 
such  default,  ie,  bj  making  new  grants;  to  such  as  shall 
be  irilUng  to  accept  them,  at  such  leutt,.  and  <n\  such 
terms  as  shall,  be  tbought  most  advisable. 

D.  K\DER. 

August  14,  1752.  W.  MuRHAv. 


iWl  ^ 


•f    M 


^M 


a 


(5.)  The  opinion  of  the  Attoniej/-(TeneraJ.  Yorke, 
on  the  manner  of  diecussin-g  ohjecUon.s  to  the  KiiuJ's 
grants. 

Lincoln's  Inn,  Dec.  23.  1725. 

Sir  :  I  wceived  youi-  letter  to  Mr,  Solicitor-General 
and  myself  remindiaj?   us  of   the  reference  li-oni   the 
Lords  Commissioners  of  Trade  and  Plantations,  upon  the 
papere  transmitted  by  Major  Drisdale.  Lieutenant  Gov- 
ernor of  Virginia.     W«  have  long  ago  con.sidered  those 
papers,  ao  far  m  it  wa«  poasible  for  us  to  do,  without  be- 
ing attended  by  the  agent*  of  parties  concerned  ;  but  g 
caveat  having  been  entered  in  my  office,  on  the  behsUf 
of  Colonel  Spotawood,  who   claims  ».  .property  in   the 
matters  in  question,  against  any  report  being  made  with- 
out his  bedng  heard,  according  to  the  common  course  of 
proceeding,  no  re|)ort  could  be  made  till  he  had  an  op- 
portunity of  laying  his  objections  before  us.  The  method 
of  doing  this  is,  for  the  agent  of  the  Province  to  sum- 
mon the  party  entering  the  caveat  to  attend,  to  make 
out  his  objections  at  a  time  appointed,  and  then  both 
sides  may  be  h*iard  ;  or  if  nobody  attends  on  the  behalf 
of  the  person  entering  the  caveat,  a  report  will  be  made 
expaH£.      The  -want  of  doing  this  has  occasioned  the 
delay,  for  the  agent  of  the  Province  has  ne\  ei    applied 
for  a  report,  or  for  a  summons  to  call  Colonel  Spotswood  or 
his  agent  before  us.    I  do  not  mention  this  so  a.s  to  bkvoe 


I 


1.  '--  t 


r  •  '■• 


THK    Kt\f:s    PKKKOfMTIVK     \RROAl>. 


\m 


>'Yf^';  '•"•  '"^^•   "o.rlect.  for  i,  doo.   ant  appear  r<,  ,ne 
"'Mt  he  lias  ,eec.iv<.,i  an;  ov-lers  ih,ni  hi.  principal,  con- 
I'ennng  tins  aftai,  :   |„a    .C  vo,.  k,..,,   where  to  send  to 
^^•"^-  f  ••^■M  yun    u-oul.l  -lirert  fma  to  call  ^i    „„•   cham- 
"ers.   ,n    onler    to  .unuMon    Colonel    Spotswood.    or  his 
iWMits.  to  atteu.i  upon  ids  ...veat,  and  then  tins  matter 
n^^y   soon    be   hrouj^ht   h,  a  conclusion.       V<n.    uJl    be 
pleased  to  lav  tids  letter  belbra  the  Lords   Con-uiissioxx- 
'•••^.   that  their  Lordships   n,av    be  apprised  of  uv^   .-ea- 
->ns    whv    they    have    no(    ,e.eive,l    ,„„•   ,,.„,,,    ^,,,-^^^ 
ninv. 

!^    VOKIZK. 


Ivin,,  and    h    FroprUtor,  of  th.  Xorll.ni    No'h  hi 
1  ir</iitia. 

'I'"  the  Right  Honorable   the    Lords   Conunissioners   li.r 
Trade  and  Plantatiojis. 

May  it  please  your  Loii (ships  : 
In  obedience  to  your  Lor.lships'   commands,  si-nified 
'-  ns.  by  a  letter  IVom  Mr.  Popple,  relerring  us  the  state 
-i   the  case,  between  His  Majesty  and  the  Proi-rietors  of 
flu'  Northern  Xeek,hi  \'irginia.  together  with  the  copies 
"f  two  Charters  granted   bv   King  Charles  the  Second 
n.d  King  James  th-  Secon.l ;  and  a   letter  fr.mt  xMajor 
Hrisdale.  late  Lieutenant  Governor  of  Virginia,  hereunto 
..nnexed  :  we  have  consi.ler.'d  the  same,  and  ihe  .p.eries 
i>roposed  in  the  .said  letter. 

The  first  ..f  which  .pieries  is;   What  shall  pass  b\  the 
grant  nf  lolonv-^oods.  in  the  said  letters  patent  of  King 


i 


II 


170 


OPINIONS  OF  KMI.NE.ST  LAWYFRS. 


James  the  Second  ;   niul  whetluT  the  ^oods  of  n  feh  de 
se  .><hall  not  ])!iss  thereby  7 

As  to  ^vlli(•ll.  we  are  ol"  opi'nion,   (liat  by  tlie  ^ranf  of 


fel 


on  s  ;i()()(ls,  all  ^oods  m  jxts.Kossion,  helonj^iii^   to  any 


heh 


Itdon,  eonvicted.  which  arc  witliin  thi-  di.-triet  (h>seril)ed 
in  the  tyrant,  do  pass  ;  I)ut  it  liatli  liccii  dcteni'i.ied,  that 
tho.-e  words  do  not  extend  to  an_\  debts  or  rl<;hls  of  ac- 
tion, nor  to  any  Uvisos  i\rr  y^ws,  or  other  chattels  i'cal, 
lH'lon;,Mii,i;-  t(»  Mieli  lelon.  nor  to  any  goods  or  chattels, 
wliatsoeNcr,  of  a  r'<  la  >/( 


e  se. 


Tl 


!e   secoi 


111  (|ne^tion  is;  \\'helher  lines  irn|tosed  by 
tile  Kiniis  Conrt.  n|,on  persons  resi(bn<;-  within  the 
said  feriitory.  loi-  eontenipt  or  otbeiwisc.  shall  nt»t 
l>ass  by  tli(,'  said  left 
therebv    ? 


ers    ]  ,it»'iit  :  and    what    lines   pass 


As  to  tl 


us.    \\{' 


arc  of  opinion,  that  no  other  lines  pass 
therein.  Imt  >ucb  as  iire   ini[ios(M|  by  Hk-  Kni^i's   Coiii'ls, 


held  within  the  said    lerritur\  ;   tli 
Courts,  let  ol'  the  ::iaiit 


e  lines  inijioscd  at  the 
itees.  ,ire  expi'essly  i:;raiit»Ml  to  tllcni 
by  tln'  letters  patent  .1'  Kin-   Charles   tli(>  Second;  aiu' 


tl 


le  hues  iinjiosed  |,v  the  Kiiii:  s  C,,in  I-.  held  without  tl 


10 


.saiil  ternttu  \ .  cannot    u 
acciiie  Willi  till'  -auie 
The  t  hirl  oue~l  i 


lib  pripprii'l  \  ,  be  -iiid  to  ari' ;  or 


jUe-lion   :-       \\  b.il.   -hill    pa--  b\    the  word 
Ibrleiliire-.  in  ihc  said  hllei-  paleiii   ' 

As  lo  this,  ur  are  uT  opinion  that  all  ::imii1s  and  chat- 
tels, ical  and  jier-oiial  ill  pii--cv--;«iii  bcin;;  uilhiii  tiie 
said  terriliii"  .  :iiid  Toileited  li\  reasMH  nf  ;iii\  iiidi,'nient 
or  con  \  ictinii  lor  iiiisd  iiieinni  .ir  rclciii\  .  mil  all  interests 
in  any   lands   l\  in.i;   within    the    said   lernlnr\,    foileitcd 


TITR  KIXCx's    PREROC\TIVC  ABROAD.  l7l 

to  l!;c  (',„u-n  l,v  any  i-thiiiKlcr  of  U.l..iiy.  do  pnss  l.y  the 
\yonl  lorn.i (,„.,.,.  |,„t  ,i,j,  ^^.,,,.,1  i^  so  ,ir,.n,.ral  ■.mdJxtcn' 
.^ivc,  i.M.I  the.  cMsrs  whi.-h  m;.y  iiris..  uiu.n  it  so  vmHous, 
that  it  is  ii„i,os.ihK.  to  irivt'  nn  opinio,,  tl,»Mv„p.)„,  which 
liny  .luswn-  vvny  .-vcit,  with.Mit  h;i-.  i„sr  tl,..  particular 
I'act-^  statcil. 

The  only  .p„>stion  r..„fa!,i,.,J  in  Majoi-  I),iMlalr's  h'tt.  r 
i-*:  How  ,a,'  the  (;ov.-,-no,-  nf  Vi,-ii,ia  ,uav  cxcivIm.  tho 
^"'tl""ity    -iv.Ml    hi,..   l,y    llisMai,..l,N,     in   ■p:.n!nni,.;^    of- 

'•■■"••'s  an.l  ,v„,ittin-  lorfcidnrs,  aiaHu.L:-  in  the  No-n...,-,! 
Ncrh. 

As    to    uhirh.    u,.  a,v    nf  ..pi„i,,„.    (hat    nothiu-    ,.,>„- 

'^"""'1  iMth,.  >a:,l  l-tt..,-spat..n<.,v.t:-ai„hi,uln,n,,.xcT- 

.•iMn,^Mhcautho,ity   of  .Kinlonin^    .....h   oIUmuvh,  an.l   if 

thopanh,,,  h..  ^Ta,,!..,!  hclon.  any  ioilMiuiv  i„..,„Tc.l   hv 

.I'l-l-incnt.   in   ,  as-s   „i  niisdcncano,-,  .„■   I,v    lli^ht,  ,,.,i- 

VK'tion  o,-  jn,|-,n..nt,  in  <,,s,..  ..f   f,.l,,„y.  ti„'   M:,,.|on   xvill 

I'lvvcnt   any    fo,-r,.ilM,v ;   hut    if    (he   panlm  Ye  .,,,,,(,..1 

iil'tcT    th..    ioi-H.i(,n-,.   ar:,,alh    ii,ru,i  r,|.    I,v    an\  "or   the 

■"•■aiH  alo.-esai.l.   th.M..:,  tlun|H.„ee  nil!  U-  th.',vh\   ,1 

c-ha,-j;e,l,    (h.    ,i:.;,,   .,1'    (he  ^n.ntee.    (o    (he   (hin^js    li.r 

feid-d  will  eon(iiiiie. 

P.    ^  OUKK. 
C.    T  M.IIOT 


4 


IS- 


Aii^u-(   IL'.   \-j2'i 


(7)  ///,  npinionof  the  Att„n>,ii  a„.l  S,.r,r,lnr.  //,/. 
V  /•  ,n,.i  Str.n,.,. .  •nnrry^in.,  lh,  .jrant-s  of  (amh  ,n  (  \,m. 
Inn,.  /.Jon  ami  uJUr  tin  ,on-rln,.s, .  I.„  ,h,  f^;,,,  ,„■  ^/,, 
l'ritjtriiti>rH^  ri'ihti. 

''"'"'  '■'•■  ^Vli<'tl"-.:.in  onh,.,.af.,,ts::,-,H(e,i  alter 
Mien-  |.onUhi|w    h,„i    nn|.M-.!    !!,•    !an.l-ol!i,  .>    (.,  !„.   shut 

"''■    '^"'    '"    •''■"""•'    ^■•'li'l.   "thn-   ihan   ,-ueh    a.    were 

,L,rUUte(|   hy  o,(!e|-  in   I,(iMdoii  ) 


\   \ 


■  i   •-: 


!  H 


II  * 


•f ' 


172 


OPIMo\!S  OF  EMIM:nt  r.AWVE 


KS. 


c-  ;iie  ul  opiiiir.n,    (h:,(    siu-li  patents,  iimy   |,o  cr,„),i 


notwithstaiuliiig  tliMt   ur.l.T   to  shut  up  tlio  1 
ii'   tlic   Loids   ProiM'iot 


aml-ofli 


ft', 


thos"  o-i-iiiitv,  or  aftor  tl 


]M-iot..is   were    ("itlic-]-    mad*     pi  ivy    U 


vy  wfi-o  made,  received  ll 


•sidL'i-atioii  (or  tl 
fiippoj'tfd. 

-t^! — A\'liotiui'  such  pati'iit.- 
ingV:    ])iuvhasc>.  l,y    (he  Lor<)<   Proprietors-   G 


10  COll- 


K 


before  th 


leiu:   otherwise  m c  think  thcv  cannot  be 


as  were  jiniiitod  ai\er  the 


ticul, 


e   new  (Joveinor  arrived    Ironi  the  ( 


ii'l;    sucli    as  appears   to   Jiave  I 


•  overnor, 
lown,  par- 


Socretaii^  •'  !'uoks.  after  ad 


•een  entered  in  the 


of  tlie  Ki 


\  ICC  rccci\-ed  in  the  Provi 


A^ 


n,i;s  purchase,  are  to  he  (Kenied  o„,„l  ? 


lieu 


e  aiH  oi  o])inioii,  that  moi 


Jii  the  second  (.-....'re  can  1k'  deen.ed  "ood 


ic  oi  the  patents  mentioned 


od.— AMietli 


the  Crown's  purchase*  fi 


;!>•   (he    \(i  ,,f  I'arliainent  mad 


e   nj>oii 


clan-e  in  it.  (hat 
tak( 


"111   tiie  Lords  I'roprietors,  that 


it 


wa'^   lor  (pnttini:  possessions  of  p-ants. 
notice  ..f  such  .mlv.  as  bore  d.ite  beli.re   1727.       If 


<loes  not  i;i\ 


e    loom    lor  a  -trict    e\i 


•^iich  as  were  is-ned  sub 


imination   into  all 


.irranls    ajipenr    to    ha\i'     I 


•««|i!ciif  t(.  iliat  time,  and  if  sueli 


>iiulit   not  ( 


"    ''c  \(M(le(|.  luit  II-    t 


for  -lei 


1  a  villi:  (Ik 


"•'■11     iire-;iilarl\     made,    they 
"  Mi.  h  as  wi-re  gi anted 


if  the   ( 
peiise  7 


e\pen  eui   nriuiii;:  the  boundary  line 


low  I,    ,1,   Mich  ca«v  ,,u,ulii    not    to  bear   tl 


le  e\- 


\\v  think  it 


(o  in  tl 


"■"per  to  ..bMTvc    (li:it  the  c|auM«  referred 


ing  date,  but   I 


11^  .,n,MMv.  dn,..  uot  put  ,1   upon  the    patiuts    lu-ar- 


'111;,;   actuall\     made    I 


•elurc    1st  .lanuarx 


n--;  ami  eouMdennir  the  extraoniinarv   ciicumst 
altendin.u- these  ,urants,  and    that    the  Crown  had 
tiee  of  them,  at  the  time  n\'  tl 


ances 


no  no- 


I'ea-ou  lor 


le  piiicji;!,,'.  (he-e  i.i  ^iieat 

"  ^""  '    "'".^    "If"  'b.'  vah.',:v  (!u'reoi;aml 

lUK)  timt 


lo  avoid  (l.vm  loi  such  UK  :;ulariliL%     iJuL  u.^  l! 


THE  KINU  s   PRKKOGATI 


VK  ABROAD. 


wero  granted  for  del 
line. 


173 


IVT* 


think  it 
such  i)nrcl 


seem  .()  .stand   i  i  ;i  mncl 


•ing  the  expense  of  tlie  bonnd 


irv 


reas.mahle  .,>■„,.  indulgvnc.'  shoidd  be  .she 


?ha 


i)nrclii)seis.  l)v  i-^ 


!i  more  fuvorahle  lii-ht    we 


wn  to 


chasi"  wliat  the.v  or  tl 
vated 


fi  ? 


tion  nioiie\  for  the  rest 


Ki"-»iirni<j;  on  the  terms  of  the  pur- 
leu-  as.si^rn.s  Imve  actually  oulti- 
K  eonsidera- 


iiiK.  Uy  re-payinfr  a  proportion  of  tl 


4th.— Wheth. 


sillied  witii  Maiik.s,  and 


I'  f^uch  pater. ts  as  v(>re  d 


rawii  uj) 


and 


ries"  oHicv   lor  some   \ 
,i;«>()d  ;  if  their  not   I. 
ol'  fraud  .' 


not   refrist.'red  in   the   Secreti 


ears  afterwards,   shall  ho  d 
'iu.ir  registered,  i    not 


m  e\ 


eemed 
idenee 


Wo  are  of  ..pinion,  that   in  general, 
were  exemted  with  such  blank 


use.  thnno-l,  jill^.,] 


xucli   patents  as 
s  a,'^  arc  mentioned  in  the 


up  alterward^.  an 


have  been  atlcn.lcd   with  a  I 


V(»id  ;  but  if  ;hev 


nil; 


iiined  I'laudiik-nfly  or  iin-ii'-rl 


g  posses.sion.  iuid    not   i.b- 


\^«'   •hiiik   thev   ought   to  Ih.  i„ 


the 


Jie 


cii'cumstance  of  not  f 


in  aii\-  other  respect, 
•w  support.  !;  and  as  to 


iflice  1 


K'ing  registered  i„  the  Secret: 


Ol-  some  years  afterwards,  it  not    I 


Ik'W  far  hi-  within  ^vhnt    time 
to  the  \alidit\   nl'  sncl 


•t'iug    tated 


sucb  rc'gisti-,   is  1 


lece.ssarv 


ueizlected. 


•   grants,  nor  for  bow  huitr  it 


we  cannot  form  aiiv  iiid. 


was 


that  will  li.iv 


e  II 


-.11.     - 


w 


poll   tl 


c  patents. 


uicnt.  what  inlhienee 


lu'Hier  -iieh    patent,, 
out  an\   deseription  of  the  bound 
l»y  reguh.r  surveys,  ivtiiriied    nito  tl„.  S 


1  ■  v.-ere  gixcn  oiit  w  it! 


line 


J.i'O  fo  be  (I 


cciiied  \,ilit 


ind  not  prece.j.-d 
Secretaries   olIi( ,. 


W 


'•>ie  of  opinion,  that    th 


or 


tla-  iioiindar 

ol   itsi-li;  snliicient 


circiiiiHtaiiees  w 


er» 


sue  I 


li  grants,   and 


of  piecediiii. 

to    d 

e.-trov 

e   I 

knowi 

even 

in  that 

e    w 


iiut  (.1   .1  deseription   of 


reirnlar  siirxcxs. 
"Udi  piitents,  mile: 


1^  not. 
'S  .-.uch 


1   re.piisitcs,  nece-ssar',-  to 


'  eu..««..  if  tl 


i^  pioprietora 


1 1* 


m 


I 


174  opmioNs  OP  sMiNEivr  laWyehs. 

have  had  the  consideration,  and  the  lands  have  been  on- 
joyed  accnrdingl/,  without  fraud,  we  think  such  grants 
ought  to  ije  deemed  valid. 

6th,— Whether  those  grants  issued  by  virtue  of  war- 
rants that  had  Iain  hy  many  years,  are  to  l)e  deemed 
good,  notwithstanding  the  grants  assigned  tliem  were 
taken  out  irrrgularly,  and  particularlv  those  after 
1727  ? 

We  are  of  opinion,  that  tha  circumstance  of  there 
having  Ixvn  warrants  many  years  before  the  giants 
issued,  is  not,  of  itself,  sulTicicnt  to  support  grants  that 
would,  otherwise,  be  irregular  and  void ;  though  upon 
the  general  question  of  fraud,  that  cirrnmstance  may, 
pro})ably,  be  of  some  service  to  the  grantees,  according 
to  the  particular  circumstances  of  each  case,  whether 
sucli  gnint.s  issued  before  or  niter  the  year  1727. 

7th,— Ah  it  is  all'.'ged  by  the  Governor,  that  many 
of  the  people  th:.t  hold  lands  l)y  virtue  of  the  patents, 
formerly  granted  under  the  Lords  Proprietors,  possess 
much  greater  (piantities  than  tliey  ought  to  hold,  by 
the  words  of  the  said  grants,  has  pit  the  C,-.>wn  power 
to  re-.Mirvey  .such  lands  /  and,  in  ca.se  any  fraud  should 
appear,  what  steps  nuist  the  Cnnvn  t^ike  to  recover  ita 
right  1 

We  are  of  opinion,  that  whoevci  po^  ,>ss(>s  a  much 
greater  rpinntity  than  they  ought  to  hol<l.  by  the  words 
of  a  grant  made  since  1st  of  .laiuiary.  1727,  is  liable  to 
have  the  sani(>  rc-siiiv cvid  dii  lu'lntlt  of  'he  Crown. 
But,  as  to  grants  made  before  1727.  up(»ii  mvcvsac- 
lualiy  mmle.  wc  apprehend  (if  they  were  otherwise 
go<»d  in  law.)  they  are  excepted  by  the  Art  2  (Jeo.  2., 
"Ut  of  the  sale  to  the  Crown,  and,  therefore,  not  liable 
U)  he  mvf  r<y9urvuyoa ,  aad  im  to  strk  cases,  vrbcrein 


THE  kino's  prsjrogativb  abkoad."  175 

a  re-survey  is  proper,  and  yet  the  grants  are  valid  in 
law,  we  are  of  opinion,  that  the  proper  remedy  is  by  in- 
formation, in  the  nan.e  of  the  Attorney-G.neraJ  of  the 
Provmce,  in  a  Court  of  Equity  there,  in  order  to  have 
the  real  quantity  sot  out,  and  the  excess  pared  off  Ibr 
the  beneht  of  the  Crown. 

8th,--In  case  any  of  these  grants  appear  t.  be  voida- 
ble in  law,  what  is  the  proper  method  to  have  the  same 
vacated  1 

We  are  of  opinion,  that  the  proper  method  for  the 
Crown  to  recover  its  right,  (except  in  the  instances 
mentioned  in  tiie  answer  to  the  la^t  quaere,)  is  by  an  in- 
Icnaation  ol  intrii«ion,  in  the  proper  Court  of  the  Pro- 
v.nce,  and  ,n  case  of  error  there,  by  appeal  to  His  Ma- 
jesty m  Council. 

K-bruary  11,  1737.  J.  St«angk. 

(S.yjhe  opinion  of  the  Atton^ey  and  HoUHtor-Gene. 
ral,  5  orfc  ami  Talbot,  on  grant,  that  are  void  for  un- 
tertainttj. 

To  the  Right  Honorable  the  Lords  Ccmmissionen,  for 
trade  and  Plantations. 

M;iy  it  please  your  L<)r(l,sl)ip.s  ; 
In  olK'di.ncetoyour  I.u'dship. 'commands,    .sigi^jfiod 
ou.  byl.tU-r  from  Mr.  P,>pple,  i,rorming  v;s  that  vour 
I<>r.lsh.ps,    baving  had  u.ul.,-  considonition  soveral   pa- 
pers relating  f  ,  the  settlement  of  Carolina,  and  ob^elv. 
ing  that  .on.,.,  grants  were  made  by  the  late  Lorjs  I'n,. 
pnetors,  of  large  tract,  of  land,  without  any  limitation 
tl.orem  a.   to  the  phu-e  where  or   time  whim  the  .aid 
!ai..    .,s  to  be  taken  up  and  seated;  and  transmitting  t<, 
u«  ilMi  encAu^^d  cupy  of  a  ^^i  of  thiU  kiud.  maJi:  to 


176, 


OPINIONS  OF  EMINENT  LAWYERS. 


M    'i 


J 


Sir  Nathnnic'l  Jolinsoji.  in  1G8G,  which  hath  never  yet 
heon  put  in  oxocntioii.  together  witli  the  enclosed  copy 
of  the  original  grant,  from  the  (y'rown  to  tlie  Lords  Pro- 
prietors of  Carolina,  tor  our  further  information  ;  and 
desiring  us  to  con-iidor  the  same,  and  report  our  opiiii(m, 
in  point  of  law.  whether  such  grants  are  legal  and  of 
force.  We  have  considered  the  patent,  wherehv  the 
said  Lords  Pro[)ri('tors  did  grant  to  Sir  Nathaniel  John- 
son, the  liono'-  and  dignity  of  a  ('((s-sitytn-.  nnn  <fiia!iit^ 
hai-otiiis  f/iianmi  s'lnifiila  routiiwdi  (iiKxliciin  tnilk  (K'ra-'i 
Urra  ;  and  are  of  opinion  that,  in  regard,  the  phice  where 
the  said  lands  lie  is  not  descrihed,  nor  any  method  provi- 
ded In  which  the  same  may  Ite  ascertained,  such  grant  of 
the  two  baronies  is.  hy  renson  of  the  unceriainty  tliereof, 
ahsolutelv   void  in   law. 

P.    YOKKE. 


•lulv  L'Sth,  17:10. 


C.   'I'VI.HOT. 


(0.)  'I  he  opinions  of  Mr.  Foii:  ;  itnd  of  (he  Attorntij 
an<i  SoJii'itov-^Tencrah  Wilhs  ami  Rijdar,  on  flw  (pii'^' 
tion  oj  j)(iti  n'inij  hind-t.  lunhr  ol-l  i/rmtts  from  thi-  Pro- 
prittorics  of  ( 'orofino. 

To    the   Right    Honorable   the   liOrds  Commissioners  of 

Trach'  and  Plnntations. 

May  it  ])h'isi>  your  Lordsliijis; 

In  nhcdionce  to  your  Lordslii|)-'  ,  otnmand-.  signified 
to  me  iiy  Mr.  I  ()p]tlc,  (h'siii.ig  niy  opinion,  in  point  of 
liiw,  whctlicr  the  townslii|is  of  Purryshonuigh.inCarolini', 
lu'ing,  |Mirsu;iut  ti-  His  >hijest\'s  instructions,  set  out  for 
til.' u>;c  ot  ,'("  tain  people;  and  His  Majesty  having  declar- 
ed flint  ;ill  til.  land  within  six  mih's  (hereof  shall  not  he 
taken  i.p  'ly  aii\-  jierson  claiming  a  riirht  under  old 
grants    which    '  i\'e    not  In-en  taken   up.    shall    not  l>e 


THE  king's   prerogative  ABROAD.  177 

deemed  such  an  effectual  taking  up  of  the  said  land,  for 
His  Majesty's  use,  as  to  invalidate  the  claim  of  any  per- 
son who  shall,  subsequent  to  th.  said  instructions  and 
proclamation,  take  up  land  there.    And,  I  humbly  certi- 
y  to  your  Lordships,  that  I  think  the  grantees  of  the 
at^  Lords  Proprietors^  under  tlie  general  power  granted 
to  them,  of  taking  such  .juantities  ofland  in  such  places 
as  they  shall  think  fit,  since  they  neglected  to  do  it  pre- 
vious to  His  Majesty's  instructions  and  declaration  sha  1 
not  now  be  permitted  to  pitch  upon  lands  already  set- 
tied;  but  must  have  the  effect  and  operation  of  "their 
grants  upon  lands  now  unsettled. 

July  23,  1734.  ^^''"''-  ^*''=- 

The  grant  being  general  of  12,000  acres  of  land,  and 
the  same  being  not  described  therein,  nor  ascertained  bv 
any  survey,  before  the  proclamation  of  Governor  John- 
son, we  are  of  opinion,  that  such  grantee  cannot  now 
take  up  lands,  within  six  miles  of  Purrvsborough      For 
the  right  of  the  Lords  Pr<.,,rietors  is  now  vested  in  the 
Crown,  and  such  general  grnr.t  could  certainly  not  have 
prevent*.,!  the  Lords    Proprietors    from  making  subse- 
quent  grants  of  any  particular  lands,  provided  there  was 
.still  suflKMcnt  land  left  t<.  .satisly  such  precedent  grant  • 
and  yet  this  would  be  the  necessary  consequence,  if  such 
general  gra/itee  nught,  at  ;uiy  time  before  his  lands  are 
1ft  out,  take  then,  wherever   he  pleases,  an.l  disturb  the 
posse,ss.,m  of  any  subse.p.ent  grante,-.      This  would  not 
only  be  i  great  i.nn.si...  of  His  Majesty  s  right,  but  would 
.•reate  very  great   confusion,  and  w  .uld  tend  very  much 
t^>  the  disturbance  ol"  the  peace  of  the  country. 

J  ^^  ii.i.Es. 

August    llith,     IT.it  f).     IIVDKR. 


m 


_:  i 


178 


OPINIONS  OF  EMINENT  LAWYERS. 


(10.)  77i£  opinion  of  the  mtne  lawyers,  on  tU  nuUity 
of  a  similar  grant  to  Mr.  Hodgson. 

To  the  Right  Honorable   the  Lords   Commis&ioners  of 

Trade  and  Plantations. 

May  it  please  your  Lordships  ; 

In  obedience  to  your  Lordships'  commands,  signified 
to  us  by  Mr.  Popple,  we  have  considered  the  letters  pa- 
tent (a  copy  of  which  you  was  pleased  to  send  us)  from 
the  late  Lords  Proprietors  of  Carolina,  in  1715,  to  Wil- 
liam Hodgson,  Esq.,  and  we  are  of  opinion,  that  the 
words  are  too  general  to  pass  lands,  and  that  Mr.  Hodg- 
son  hath  no  right  to  any  land  in  Carolina,  by  virtue  of 
the  said  patent. 

J.  WiLLES. 

November  24th,  1735.  D.  Ryder. 

(11.)  7 he  opinion  of  Mr.  Fane,  on  the  validity  of  tlie 
grant  of  the  Secretary's  office  in  South  Carolina. 
To  the  Right  Hon  Table,  the  Lords  Commissioners  for 

Trade  and  Plantations. 

May  it  please  your  Loi-dships  ; 

In  obedience  to  your  Lordships^  connnands  signified 
to  me  by  Mr.  Hill,  I  have  considered  the  case  of  Mr. 
Hammerton,  relating  to  his  claim  of  the  office  of  Regis- 
trar  of  the  Province  of  South  Carolina,  and  I  beg  leave 
to  say,  that  I  think  he  \>  well  entitled  to  it,  bv  virtue  of 
hi.^  grant  from  tbe  Crown  ;  and,  notwitli.Ktan.ling  there 
does  not  appear  to  beany  conuuission  of  Kegi^;trar grant- 
ed by  the  Lords  Proprietors  til!  tbe  \,.ar  17(10.  y,i\.^  rh 
the  \ct.-  of  1694  and  lODS  have  dire.-ted  what  is  to'  be 
done  by  such  an  officer.  I  ihink  it  i^  very  probable  ti;,it 
buch  an  oflicer  was  appointed  l)efore,  or  at  the  time  those 


THE   king's    prerogative    ABROAD.  179 

Acfa  were  passed.  I  think,  therefore,  it  appears  to  be 
nn  ancient  office,  and  held  and  exercised  bv  the  Secreta- 
nf  itoT^  *i'L^"''^'  Proprietors'  time  ;  and  by  the  Act. 
of  694  and  1698,  it  was  his  duty  to  register  all  patents 
and  grants  for  lands,  sales,  conveyances  and  mortgages 
o.  land,  and  all  other  writings  that  were  required  to  be 
registered. 

By  the  grant  of  the  Lords  Proprietors  to  Mr.  Bertie 
m  1720,  he  ,s  empowered  to  do  and  perform,  not  only 
the  particular  matters  and  things  therein  mentioned,  but 
also  all  other  act«  usually  done  by  the  former  Secretaries 
The  present  grant  to  Mr.  Hainmerton  pursues  the  very 
words  ofMr.  Bertie's  grant,  as  to  the  description  of  the 
olhce,  and  empowers  the  grantc..,  not  only  to  do  and  per- 
form  the  several  matters  and  things  therein  particularly 
specified,  but  ..Iso  all  (.ther  acts  usually  dona  by  the  for- 
mer Secret^iries  ;  and  it  appears,  by  the  pa{>ers  referred 
to  me,  that  the  whole  business  of  Registrar  and  Secre- 
tary, was  exercised  by.the  Secretary  without  any  molest, 
atjon,  irom   1700  till    Mr.  Johnson    was  appointed  in 
1<3.].     Tins  being  the   case,    I  think   Mr.  Hammert.m 
•s    entitled  to   hold   and   enjoy    hi«   grant,    in   as   full 
an  extent  as  any  of  his  predecessors  have  done,  in  th^ 
time  of  the  Lords  Proprietors. 

Fh.\n.  Fane. 
June  8th,  1739. 

(12.)  77u  opinion  o/f/w  .Uforney-Geneml  WiUc9,  on 
th,:^  ri.jht  ofihe  Proprietor  of  ^far,jhH<f.  to  appoint  to 
<'ffi:'i-^\  nnifer  tlu-  I\in,/.^  (luiH.r-^. 

<^,,<an'  1.— WhetJHT,  by  the  Charter  of  Maryland,  the 
Lord  ProprieU.r  has  nut  aright  to  the  nouiinatiou  of  all 
ulhccrs  iu  general,  civil  as  well  .;".o  military  ? 


.  ■+  ■■  *J  .   S  1  :    i    *,  J 


. :  r 


■■'tf  M 


180 


OPINIONS  OF  EMINENT  LAWYERS. 


iff^ 


i< 


An»icer. — I  am  of  opinion,  that  by  the  Charter  of  Ma- 
ryland, the  Lord  Proprietor  has  a  right  to  nominate 
and  appoint  all  officers  in  general,  as  well  civil  as  mili- 
tary.  • 

Qurere  2. — "Whether  there  is  anything  particular  in 
the  nature  of  the  office  of  Treasurer,  of  either  shore,  to 
exempt  it  from  the  said  nomination  ? 

An-siver. — It  does  not  appear  to  me,  that  there  is  any 
thing  so  particular  in  the  nature  of  the  office  of  Treasur- 
er, of  cither  shore,  as  to  take  the  right  of  nomination  to 
this  office  from  the  Lord  Proprietor,  and  to  give  it  to 
any  other  persons. 

Qiicere  3. — Whether  a  few  precedents  in  this  case,  of 
a  Treasurer  being  appointed  by  tripartite  concurrence  of 
both  Houses  of  Asseml)ly  and  the  Governor,  can  or  do 
overthrow  His  Lordship's  right. 

An-s-wer. — All  the  precedents,  except  one,  being  be- 
tween 1(j92  ;uid  ITIG,  when  my  Lord  Baltimore  was 
out  of  possession,  I  am  of  opinion,  that  they  will  not 
overthrow  his  Lordship's  right,  founded  upon  such  plain 
words  in  the  Charter. 

Qmere  4.  -Whether  the  precedents,  hereunto  annex- 
ed, do  divest  the  Lord  Proprietor  of  his  right  of  nomina- 
tion to  the  office  of  Tieasui er  or  Treasurers,  so  nominated, 
they  givnig  the  .security  the  law  directs  1 

An-'^wer. — The  Trc;isurer  or  Ti-eusurers,  when  nomi- 
nated by  t bo  Proprietor,  must  give  such  security  as  the 
law  directs.  To  the  other  part  of  this  qimre,  I  have 
given  an  answer  already. 

J.  Wille;., 
January  22,  1730-7. 


THE  king's   prerogative  ABROAD. 


181 


.Po?//-M7y.— Of  an  anomalous  exclusion  of  the  King's 
right  of  granting  a  colonial  office. 

{lyne  opinion  of  the  Solicitor-Geneml  Mo'.tanue 
on  the  cxdmiveHght  of  the  Governors,  to  appoint  naval 
offuers. 

Whitr::all,  June  11,  1708. 
tern;  Her  Majesty,  ha^^ing  been  pleased  to  refer  to 
the  Lords  Commissioners  of  Trade  and  Plantations  a  pe- 
tition from  Mr.  Samuel  Cox,  complaining  of  his  having 
been  turned  out  of  his  place  of  naval  officer,  in  Barba- 
does,  by  Mr.  Crow,  Governor  of  the  said  Island,  and 
praynig  to  be  restored  to  his  said  place  ;  their  Lordships 
have  commanded  me  io  send  you  the  enclosed  papers 
viz :  1-  1       ) 

A  clause  in  an  Act  of  Parliament,  passed  in  the  loth 
y^u- of  the  reign  of  King  Charles  the  Second,  entitled 

An  Act  for  the  encouragement  of  trade  r' 

A  clause  in  an  Act  of  Parliame.it.  passed  in  the  sev- 
enth and  eighth  years  of  His  h.te  Majestv's  reign,  enti- 
tled '•  An  Act  for  preventing  frauds  and  re-ulnth..!-  abu- 
ses in  the  plantation  trade  ; 

Copy  of  a  clause  in  Her  MjeslyV  instructions  to  Mr 
Crow,  relating  to  the  Acts  .r  Trade  and  Navigation  • 

Ol'V  of  a  clause  in  Mr.  Crow's  instructions,  relating 
to  the  government  of  Barbadoes.  ° 

Upon  consideration  of  which  papers,  their  Lordships 
dosire  your  opinion  :  Whether,  by  the  foren.entioned 
Acts,  the  power  of  appointing  the  naval  officer  be  vested 
solely  in  a  Governor  of  the  Plantations,  c.xclusi^e  of  the 
Crown  ?  " 

In  ca.se  the  sole  right  be  in  the  Governor,  vet  the  said 
office  bein^.  fiUed  by  virtue  of  lottcr.  i^i^ut  tl-o:.  the 


182 


OPINIONS    OF    EMINENT    LAWYERS. 


It    ' 


Crowu,  granted  and  enjoyed  during  tiie  time  of  two  pre- 
ceding Governor.s,  (which  is  the  case  of  Mr.  Cox,  the  pe- 
titioner): quare,  Whether  the  prc-^cnt  Governor  can  dis- 
possess him  of  the  said  office,  without  an_\'  crime  or  mis- 
management alleged  against  him  ;  or  whether  the  right 
of  the  Governor  accrues  only  in  case  of  vacancy  during 
his  government. 

W.  Popple,  Jun. 

July  13th,  1708. 
My  Lords  ; 

In  obedience  to  your  Lordship.s'  commands,  signified 
to  me  by  Mr.  Popple,  the  11th  of  June  last,  I  have  con- 
sidered tlie  several  clauses  in  the  Acts  of  Parliament, 
made  the  fifteenth  year  of  King  Charles  the  Second,  for 
encouragement  of  trade,  and  the  seventh  and  eighth  years 
of  Hi:,  late  Majesty  King  William,  for  preventing  frauds 
and  regulating  abu.ses  in  the  Plantation  Trade  ;  and  I 
have  perused  tlie  clauses  in  Her  present  Majesty's  in- 
structions to  Mr.  Crow,  relating  to  the  Acts  of  Trade  and 
Navigation,  and  to  the  Governmc..-  of  Burhadoes. 

And  in  answer  to  the  Kw^iqiiart  your  Lordships  have 
made  thereupon,  viz :  Whether,  by  the  aforementioned 
Acts,  the  power  of  :\ppointing  the  naval  officer  be  vest- 
ed solely  in  a  (io^crnor  of  the  Plantations,  exclusive  of 
the  Crown  ]  my  liuiiiM'^  opinion  is,  that  sii-  e  the  stat- 
ute c:  '  .''t  en  til  of  (li;i.  11.  does  expressly  require  all 
mas*^  ■■  vi'^MMps  c()ii...l^  t)  tlic  I'huitatioiis,  to  nial-'^ 
known  their  arrivid  and  giw  in  ;in  iiivi  iit  mx-  of  their 
goods  to  the  Governor  there,  or.such  ollicc,  .:-  ^liall  he  by 
him  hereunto  authorized  and  appointed,  beforo  -xwy  good.s 
be  unladen,  that  the  ajjpointment  of  this  officer,  who  is 
uow  cu,lkd  the  Nu.val  officer,  duua  solely  bcloug  to  the 


THE    king's  PRKROGATIVt  ABROAn  IgJ 

Governor  ol  such  Plantations;  and,  therefore,  if  the 
Crown  constitute  a  person  to  execute  th.  offico  and  thi 
Governor  appoint  another  person,  I  think  all  masters  of 

d'b7th  r  '■'^'  ^-^PPlv  to  the  naval  officer  appoint- 
cd  by  the  Governor,  an.l  the  patentee  will  not  be  in 
•such  case,  en.powored  to  do  the  things  req\.red  by  Huch 
officer.  n.ont,oned  in  the  said  Act  of  Parliament 

lh.s  be,n^  rny  opinion  concerning  the  authority  such 
officer  has,   when  constituted  as  before  i.  n^entioned   I 

Ibe  ;;;T'"^".^^  ^^-^Z  ^^^  --^  -^ce  can  n.ver  be  said 
to  be  ftul  by  v.rtue  of  letters  pate«t  fr-n.  the  Crown, 
which  IS  the  answer  I  return  to  the  sec.-nd  ..are 

not  tb   t  T  ''"'  ''"'''''  '  '^^  ''^'^''  =  ^ '  that  I  do 

not  thmktie  present  Governor  can  be  said  to  have  dis- 
possessed Mr^Cox  of  the  said  office,  byappointmg  a  na- 
a^  officer;    because,   if  Mr,  Cox  was  not  appointed  by 
the  Go  ,,,  ,^^^.^^  ^^^^  ^,^^^^^^^  mentioned  in  the 

Act  of  Parlmmeat,  who  is  described  to  be  one  that  is  au- 
thorised and  appointed  by  the  Governor  ;  but,  in  regard 
the  Governors  oftho  Plantations  areput  in  bvtheCrown 
owlyaunng  pleasure;  I  take  it  for  granted,  no  one  will 
make  any  difficulty  in  appointing  such  na^-al  office" 
the  Crown  shall  best  approve  of 

James  Montacoe. 


J 


i 


I 


f^'^^:! 

.     .  .     :  :: 

..iiuidih 

Iff 


184 


OI'INtoNS  OK  EMINENT  LAWYERS. 


i  '■ 


I 


iHi 


'1 


I^'ij'th. — Of  the  Kings  gcMieral  jin  isdiclion  o\or  his 
territories  iil)roa(l. 

(1.)  Tin  opinion  of  i]i(  Altoriu II  and  Solicitor-dene- 
raJ,  li'jijnioint  (III'/  Yarkt-.on  tin-  hiiofs  poirertoe-yUd'Ush 
(I  Cii'il  J iiri'«/li  tio)i  (it  fjiliniUnr. 

T.)   the    Right  -llonoraltk'  Ihe  Lords  of  the   Conimittoo 
ofHis  Majcstv  s  most  llonorahle  I'rivy  Coimcil. 

May  it  please  your  Lordships  ; 
In  himihh' ohedieiici  to  vdur  I>ordsliips' order,  of  the 
2'")th  day  of  .luly  last,  leferring  to  us  a  petition  of  seve- 
ral merchants  and  traders  lo  the  town  ami  garrison  of 
(iihraltar.  for  t'stahlishing  a  (yourt  of  ('i\  il  Judieature 
th(M'e.  and  commanding  U'-  to  consider  fhen'oi",  and  to 
prepare  a  cira't.  or  ]iroper  h<'ads,  f(,r  the  forming  a 
scheme  iltr  estaldi-liing  the  same,  and  to  present  the 
same  to  yoin-  liordsliips  for  your  consideration,  we  have 
considered  the  said  petition,  which  set.><  forth  that  the 
petitioners,  concerned  in  trade,  are  greath  prejudiced 
aliH-ady,  and  dl--c  .rau'cil  to  continue  the  s.imc.  for  the 
want  oi',1  luiui  oi('i\il  ( io\  errnuent  <>stal>lishcd  there, (it 
Iteiug  at  present  im(K'r  that  of;i  mditarv  one. )  w  herehy 
the  petitioni-r-  ire  not  secure  iii  their  properties;  that 
His  M.ijesty  had  lieen  ])leased  to  i:iant  his  roval  letters 
patent  I'or  th.it  pnrimse  .  it  is  yet.  notwitlistanding.  in  tin- 
hands  of  milita 


r\    maLn--tra(es. 


That  the  -etthnir  a  ("i\  il  Judicature  tl 


M're  would  con- 


tri'iiite  \  ti\    nun  h  tut  lie  advant; 


:e  ol'  Ir'ade   in  general 


and  t>i  the  entire  s.it isfaeiion  of  all  His  Majesty  s  tra- 
dinjj  suhjeets,  a<  \V(  II  ,is  to  the  i^i-eat  ,i(|vanhige  of  Hi.s 
Majesty's  reveuue>  ,  the  petitioners^  therefore.  luiinMy 
prayed,  tliat    His  Majt-sty  woidd  direct  that  a   (.'Ivil  .In- 


THE  ItlNo's   rREROCATUK  ABnOAD.  JgS 

'7  t-  ■-.""»<.•,!  ,„  ,„  ,■,,„,,  lK.n,.o,  ,„„,  LZJZ 

Am   „,.  |,„    ,,,,  ,„,.,,  ^. ,^,_.  ,^^         ^^^^^^ 

he  ,,  .r..„,.  „  l„«.  „,„„,,  „,,,  ,„|,.,,ii„„|  ,„  „,^. 
nn„|i,.„,i,„    ,  ■     '  "■"'■'■•Iv....   ,„■  ,|„,r  aR,.„l,.  ,„„,le 

:;:;  tt'  ;;:■"■'  ■-" .'  •^'.-  "ii .a :; 

t-H. , ......  „,  „„.  „„.„„„.,,  ,„.  ,,„,,.^^;,  ■;  >. 

.      '-...I.....   ..,...„    >vl,i..,,   a„o,„l,„„.,.  „,.   ,.„       „     ; 

:!'";"""■ •"•■'"-'■"- p.-...  .......li.i..,,  aTd 

""'''""•I"-'"": -!.".■ i.i  i,.,wo  „; 

:","';;';' ■^•■'MAu,,v,M,,,„„ir,,.v.„,„i,w„,i„.,: 

;':^,  "''">"■"■"'"■■■■■•■  "■■■■•■•"<■ .-.  wi,.„  i,  w„» 

^" -^".»    III.'   .-..in.  Ill   „l |.„,,    ,„    I,       '       ' 

,.i,.,,„.l  ,  ,  "■>   "I  i'.iii"|ia,  liHir 

'lla|.c'l>,  ami  ,.,„.  .| , |  |;,,„j|j,., 

.     ■'!'""; ''■■""'"•""■"■■'"'"""^-..■.I.li-li.'.l  III,.,-,.  ,„ 

:','■■""• "" "'"■'  ■'■'•■'. ■  ■■ - , 

:;:.":;;' ■"•■"' -> ■"..  .,..„. ,.,.,, „„„„,. 

,,,-^  ■'""■'■'■  ,:*';''■'■ '"•-........<■ ..Il,  ...  1.0  a„„i,a|K. 

"■'■'■""•  "'  ""■'-■•" ■•'.....■.I:  ..v„  I „■,    ,„,,• 

'       ^' ;','"■    -^   '•I......l-rlai„;   a   Ti,.|,.iii,,.  ,„,   „„. 

Ul...,;  ,  a  .M,i-,„,  M..,,..,,  t„  U.-„l.iK„m.J  I,,   ,li,  u,,,. 


«U 


'hs 


!  f    ' 


186 


OPINIONS    OF  EMINENT    LAWYERS. 


^ 


and  Aldermen,  to  muster  the  militia  and  the  gai  i  ison, 
whenever  the  garrison  is  mustered,  and  to  si<]jn  the  mus- 
ter-rolls with  tl)  •  ^[ajor  ;  the  i.ulina  to  guard  the  two 
towers  next  tlie  land,  to  prevent  the  soldiers  deseiting  ; 
a  house  to  he  settled  tor  the  town  hall,  where  the  records 
shall  be  kept,  and  the  Courts  of  Justice  act,  and  the  ma- 


gistrates assemhle;  a  house 


to  he  settled  lor  the  Governor 


no  Consuls  of  anv 


and   oiticers  ol'  the  garrison  ;     the   ])rivate  sentinels  to 
have  |)ro)K'r  barracks  assigned  them 
nation,  or  Jews,  to  reside  there. 

The  sul)stai,ce  of  the  latter  ]taper  is,  that  at  least  two 
hundn-il  of  His  Majesty's  subjects,  inhabiting  in  (iibral- 


tar. 


dler    for    want    of   m    Couit  of  Civil*  Judicature 


being    established    then-,    bi'ing  more    ill    treated    than 
strangers. 

That  the  winit  of  a  ('um  Court  not  only  afl'ects  His 
Majesty's  subjects  iidial)iiing  there,  but  mU  nicrchiints  in 
genend.  trading  Irom  Creat  Biitiiin  ;\ud  Ireland  up  the 
Mediterranean,  y:rea(  inMrd)ers  of  whom  would  build 
hriuses,  cellars  i^c  ,  upon  the  ruins  wh.'ic  tin  ri'  is  ,s|,...  > 
enough,  so  tiiat  there  would  be  a  spueiniis  towii,.md  well 
irhabiic'l  by  His  Maj*'sty's  subjects,  iftlie  iudidgence  of 

''     His    .Mil jest'  '    grneious 


a  Civil  ('nint  was  i:rauteil, 


( 


)ei 


nnssioi'  fur  tlieir  l)Uii(liu 


tl 


UTC 


That  the  S|iauiiiid    wlm  iuhi.'iif  there,  bine  ii  Spanish 


onsul  anil  a 


iiauisli  l,(\v  \  n  ,  Willi  ilernle  ;ul  i 


ill 


ei'euces 


ttint  arise  between  llieiii 

'riiiit   the   Kreucli  wlm  ilwell    there.  ;ir"  governed  iifter 
the  Hninc  nianuei  as   the  Spaniards    wlm  p;iy  liirge  rents 


tl)    the   Ciii\enmr,    uhmiI  Ii1\  ,     for 


tl. 


eir 


mU'  e 


w  lueli. 
"re    to- 


il"   .•ipplieil.    wiMild    conlnliiiti'    lu    a    i^riMt    iih 

Winds   the   siibsisteiici'  (>{'  His    ^iJ|j^>^4tv's   I'orceft  in   ibit 


gari 


iHon. 


THE  KING'S  PREROO      VE  ABROAD. 


187 


^  That  the  Genoscse  who  live  there,  have,  likewise,  a 
Oonsul  and  a  hiwver  of  their  own  nation,  to  decide  their 
disputes. 

^    Tlmt  the.  Dutcli   who  are  there,  have,  also,  a  Dutch 
-on.sul,  c-cc,  who  determine  their  difterenccs. 

And  we  he-  h.ave  to  take  notice  to  your   Lordships, 
that  the  Lor. Is  (J.Mnn.issioners  of  Trade  and  Plantations' 
•"  nh,MH'n,v  to  an  oider  of  the  Lords  Ju.stices  in  Coun- 
••■'•   '■•.i,.rnnirto.|„Mu   the  l>etition  of  the  sai..  Mr    Wil- 
''^'■"  HaNk.s  an.l  otlu-is.  prayi,,.;  that  a  Court  of  Justice 
m:.y  he  cnvtcl   .U   Gihraltar.    lor  .U-cidiu^  disputes   he- 
tueeu  .uerchauts  and  traders,   hy  their  report  of  the  2d 
-I   Au,i:ust,   1720,  rcpresentcl   to  ti.eir  E.vcellencies,  that 
they   conceive,!    (Jourts   a^   (lil.raltar.    erected  after  the 
";""'"■'■    P'-''<'ti'-^''l    accordi,,^.   to    tl,..    ('o,uu.o„   Law    in 
Great    Britain,  or   in    imitati,,,,   fhenM.f,  ,„•  such  as  are 
eatahlisla-d   in    His  Majesty  s  colonies  al.road,  would  he 
vc:y  .hl.itory  ai,  I  expensive,  and,  consequentlv,  not  well 
'•'.'"IX-I    to  the  d....ision    of    tra„sit..r^     and  mercantile 

disputes  m  a  fre..  port,  where  there  are  hut  few  inhahit- 
••""^^'    tlu'.vlore,    llu.y     proposed    to  their    Kxcellencie^ 
that  a  more  sMiumnry   .Iudi.-:,tory    should    he  estahlished 
''\    ^''     •''^•"■-     '""'     ■"'•"utted     ,o     ,h,.i,.      Kx<.elleucieH 
-'"•<•-    '!"■   .hai...-Advoe.te   o|    the  ;:ams<,u.    lor  the 
"M.e  hMM.MMi^d.t    not    l.e   authorized,  upon  anv   dispute 

''-""-;rl.>  arise  .here,  to  ..;,||  ,o  h,s  a-M<tauce"two  mer- 
cha.itv.h.niteivH.dprr>o„s    i,s   xn  hos,.  „lv  „v  he  shoul.i 

''''*'"'"   '"■'^^'■••"""■'^^"i'a.nesrouN.ndiM.r  Irou,    uhi-h 

•""'-"""'   ""   "ir-' .1.:  l--totheGover ■;   aud   in 

"■aseofa   considerahlc    value.   ; .h.r  app...,!   i,.,,,   the 

|-v..n<,rs   decision,  to    ir:.  Maj.X.^    n.  (  ouueil,  as   the 
la-t  re.sort. 

That  their   Excelleucics,  the   Lord.   JuMucs.  hav^n^ 


,  I  ,  'jE 


i 


188 


OPINIONS  OP  EMINE^T  LAWYERS, 


I  ? 


I 


ft 


ll    1: 


approved  the  report  of  the  said  Lords  Commissioners 
of  Trade  and  Plantations,  by  their  order  in  Council  of 
the  11th  of  August,  1720,  A-ere  pleased  to  order,  that 
we  should,  forthwith,  pi-epare  a  draft  of  such  powers 
as  might  be  titting  for  His  Majesty  to  grant  upon  the 
said  occasion  ;  together  with  proper  regulations  to  be 
observed  in  tlie  execution  of  the  said  new  Judicature  at 
Gibraltar,  and  to  report  the  wime  to  their  Excellencies 
in  Council. 

In  obedience  to  which  order,  we  prepared  a  draft  of 
an  instrument,  to  pass  the  Great  Seal  of  Great  Britain, 
for  e'/eoting  a  Court  of  Judicature  in  Gibraltar,  which, 
being  laid  before  their   ExcellcMicies,  they  were  pleased 
to  approve  the  same,  alter  scmie  few  alterations  made 
therein  ;    after  which  a  connnission  pas.sed    the   Great 
Seal,  directing  and  empowering  the  .'udge- Advocate,  ^or 
time  being,   togotlur   with   tw )  merchants  within  the 
said  town  of  Gil>raltar,  to  Ik?  appointed,   from   time  to 
time,   by   the  Judge- Advocate,   and  any   two  of  them 
(whereof  the  Judge-Adv.H'ate  to  be  one.)  to  be  a  Court, 
to  which   Court   full  power  and  authority  is  given,   to 
hold  plea  t»l,  and   to  hear  and  determine,  m  a  summary 
way,  all  pleas  of  (lol)t.  icoount  or  other  contracts,  tres. 
passes,  :i lid  all  manner  of  other  perwmal   pleas   whatso- 
ever, bi'tween  any  person  or  perwons  whatwiH'ver.  residing 
or  U'ing  within  I  lie  said  town  or  precincts,  or  territonofl 
thereof,  and   to  give  jiMJgiuent  and   sentence  according 
to  justict     )uid    riirht  :    and    the  method  of    pro<'««iHling 
aiid  manner  of  execution   is  thereby   prescrih-d.  as,  b" 
the  said  commission,  an  entry    whereof  is  made  in  the 
Council    btM'ks,    to   which  we  beg    leave   to  re'Vr.  will 
appciir. 

XUi*  uoiii.       .on,  [Mu^vd  ju  that  iii;i-int;r  and  ujhju  <ho 


THE  king's  prerogative  ABROAD.  189 

consideration    above-mentioned,    in    .till    continued   in 
force,  and  no  objection  hfw  beer,   made   before  us  as  to 
tlie  substance  of  it,  but  only  as  to  the  por.,.ns  appointed 
to  be  Judges,  the  principp.I  whereof  being  the  Judge-Ad- 
vocate, and  he  having  authority,  from  time  to  time  to 
name  the  two  merchants   that  are  to  act  with  him  it  ^s 
objected  that  this  is  too  great  a  power   t.  be  entrusted 
with  a  smgle  person,  especially  with  one  who  is  an  offi- 
cer of  the  garrison  and  subject  to  tlio  command  of  the 
mditary  Governor,  and  upon  that  account  the  more  im- 
proper;  and.  therefore,  ,t    has   boon   proposed   that  per- 
sons  should   be  expressly  appointed,  bv  Hi.    Majesty's 
commission,  to  be   Judges,  who  undorshand  the  law  and 
ore  qualified  for  the  regular  execution  of  justice    with 
competent  salaries  for  their  trouble,  which  mav  be  de- 
iraycd  by  the  revenues  of  tiie  place 

And  we  further  certifv  your  L.,rdship..  that  th<«  said 
cc)mm.ss,o„  was  passed  at  the  instance  of  the  said  Mr 
Hayles,  upon  a  particular  .n^casion,  which  was  repre- 
sented, in  a  very  pressing  mnnnor,  to  ro(,uire  great  des- 
patch, m  order  to  the  recovering ',f,.ort,,  in  debts  then 
m  great  dang.>r  of  Ix^jng  l„«t  ;  and  for  that  renson  the 
Judge-Adv<.cate  having  boon  proposod  by  the  r>o,-d« 
Commissioners  for  Trade  and  Pi..ntHtions,  and  being 
lou.id  to  b..  the  most  proper  p.M-...>n  then  rea.Iv  upon  the 
pia<-e,  th..  commission  passed  in  that  ...annor-  but  ve 
are  humbly  of  opini,,,,.  that  in  .xo  a  .tan.ling  Judica- 
ture be  eivrtcl,  to   bave ti,„.,.n,-o    i„   the  s,,id   town 

and  temtory.  it  nuv  be  |.n.per  tb.t  persons  should  b. 
oxpressL  named  Ju.lges  in  the  ve^  connnission  who 
may  bev.>ore  particularly  qualiticd  for  the  administration 
o'  civil  justice. 

Wo    bog    leave  to   observe    to    vour  Lordsbin..  tha!_ 


i  ■ 


190 


OPmiONS  OF  EMINENT  LAWYERS. 


though  the  petition  conchidcs  with  a  ])ravor  onlv  for  the 
establishing  a  Court  of  Civil  Judicature  and  appointing 
of  Judges,  yet  it  sets  forth  that  the  petitioners  are 
greatly  prejudiced  in  their  trade,  for  want  of  a  form  of 
Civil  Government,  and,  upt)n  this  head,  we  cannot  but 
take  notice  to  your  Lordships,  that  it  has  lieen  repre- 
sented to  us,  that  the  i)lace  is  at  present  wholly  desti- 
tute of  any  Civil  Gcnernnient,  and  that  the  property  of 
the  lands  and  hous.'s  has  never  been  settled  since  the 
conquest  thereof,  in  the  time  of  the  late  Queen,  but  re- 
mains precarious. 

Upon  this  in  format  ion.  we  have  made  tlic  licst  inquiry 
we  could,  whether,  by  the  articles  of  surrender,  or  any 
treaties,  declarations,  or  other  pui)lic  acts,  ratified  by 
the  Crown  of  Great  Britain,  any  legal  ])rovision  has 
been  n.ade,  or  rules  given  for  that  purpose,  and  have 
been  able  to  fii.,i  none  :  and,  therefore,  we  are  1  'unbly 
of  opinion,  that  ;i,:  a  liiiida'uenta.,  ne<'e  ^ary  to  an v  form 
of  civil  government,  without  which  Courts  of  Judica- 
ture will  be  in  a  maimer  nsclc-s.  and  lor  liie  ipiieting  of 
the  inhabita.itx  in  their  possessions,  some  settlement 
ought  to  )k"  made  of  the  ])iopoity  in  the  lit)UM-sand  land.s 
within  tiiis  town  and  territories. 

It  has  aUo  lioeu  represented  to  us,  tliut  no  laws  have 
been  given  in  \\\\>  place  lor  (ixiiig  the  nature  of  c'-imes, 
and  the  piniish;,,ent  ^  t  i  \^r  inllicted  on  olleii(h'r  but  that 
the  same  are,  at  i  .i-eiil.  |Mii;idie(i  l.\  martial  law,  or,  at 
least,  in  a  way  of  mliiiu  ,   .li-ci|.ii!n  . 

This  we  appi'eheiid  to  '  c  ;;  lii.'l.,!  w  hiih  ie|U!res  a 
remedy;  and  tiiat  laws  >liould  be  u'ivcn  for  thi^  juu'i)  i  .«, 
and  powers  to  civil  magi  Irates  t  [lut  them  in  e.vecu- 
tion,  in  some  fixed  f'ourt  ^A'  .lu-iiie 

In  order  to  enable  oui selves  the    better   to  lay  before 


/HE  king's  prrrogative  abroad. 


191 


your  Lordships,  hearis  of  a  sclieme,  pursuant  to  vou: 
Lordf^hips'  order,  we  thought  it  not  improper  U)  inlorm 
ourselves  of  what  had  been  done  upon  tut- first  settle- 
ment of  Tangier,  m  the  time  of  King  Charles  the 
Second,  and  of  His  Majesty's  colonies  and  plantations  in 
the  West  Indies:  and  i\-y  that  purpose,  ne  perused  a 
copy  of  letters  patent  passed  f(  -  Tangier,  and  also  have 
caused  to  be  laid  before  us  copies  of  ll,e  corami-ssions 
which  were  grantt^l  for  the  islands  of  Jama  ca  and  the 
Canbbee  Islands,  upon  settlement  thereof,  which  are 
hereunto  annexed. 

As  fo  Tangier,  the  method  thou  taken  was  thus,  viz  : 
By  letters   patent,  uatcd   the   2Uth   of  April,  1668,  the 
town  was  declared   to  be  a  free  cicy,  all  the  inhabit^inta 
(being  Christians,)  were  incorporated  by  the  name  of 
Mayor,    Aldermen  and    Commonalty,  with  a   Recorder 
and    twelve  Common  Coumilmen;   out  of    the  Mayor, 
Recorder   and   Aldermen   was   constituted    a   Court  of 
Rcconl    for   determining  (•i^il  ,.a„.ses.    and   a  Court  of 
Oyv:  ..lid  Terminer  fur  criminal  mat- -rs,  with  a  general 
jurisdiction,  (except  as  to  persons  i„  actual  pay  in  the 
garrison.)    Besides  which,  a  particuhir  Court  was  erected 
f'T  mercantih-  causers  ;  and  all  [.roeeedings  were  directed 
<"'•<•  ncrording  to  the   laws  of  England,  as  near  as  the 
<'oudMum  of  th..  place  and  safety  .,f  the  inhabitants  would 
permit. 

Tb.  (irst  <'u,muis,.i..n  for  the  ^..vcnimeut  of  Jamaica, 
issued  sJMc,.  tbr  irstrictiou.  b.-ars  .laf  llu  .J,  February^ 
iSth  Car.  II.  lU  that  flu-  Covenu.r  is  directe.t  to  take' 
^"'  '■'"'  "  ''•"""■il  "I  tuclvr  uf  the  iuhi'itants,  and 
(  niongst  other  things,)  power  giveu  t<.  ,,  by  the  a.l- 


f 


■^' 


192 


OPINIONS  OF  EMINENT  LAWYERS. 


t ,-»-' 


'i  Vil     If 


II 
I 


vice  of  five  or  more  of  such  Council,  to  erect  such  and 
so  many  Civil  Judicatures,  with  authority  to  administer 
oaths,  as  should  he  held  necessar^-. 

The  commission  for   the  Carihhee  IsL-nrl-.  which   has 
been  laid  before  us.  bears  date  the  3d  of  January,  ISth 
Car.  IT.    By  that  commission,  t\w  Governor  i^  to  appoint 
a  Council  of  twelve  in  each  island,  und  a  general  power 
is  given  him,  wi+h  the  advice  of  such  Councils  respect- 
ively,  to  apjjoint  all   forms   and  ways  of  government, 
magistracy  and  execution  of  ju  :ice,  and  to  erect  Courts 
of  JudicatiM-e  for  all  causes,  criminal  and   civil,  and  to 
institute   forms   of  pi-oceeding  ;  to  apix,int  Judges  and 
otlier  officers,  and   to   a.M'crtain  their  respective  autliori- 
ties  and  fees  ;  provided,  that  all  the  constitutions  and  es- 
tablishments  so  mnde,  should  be  transmitted  to  be  al- 
lowed or  disallowed  by  Hi.s  Majesty  in  Council.    A  Gen- 
eral Assembly  is  appointed,  to  consist  of  members  to  be 
cho.^ei!  by  eacdi   township,  who  are  to  make  lawn  with 
the  assent  of  the  Ciovernor.     But  power  is  given  to  the 
Governor,  with  the  advice  of  the  lespective  Councils,  to 
make  laws  an  cniei-gent  occasions,   without   any  As.sem- 
bly,  provided  they  should   be   as  near  the  laws  of  Eug- 
Lmd  as  the  nature  and  constitution  of  thecountiv  ivould 
admit,  .od  did  not  .jiarge  or  take  away  the  right  A' nny 
pevsoiis  in  their  ficeliMld,  ^r,„Kis  and  chattels.     Power  is 
also  gi\cn  to  (he  (lovcrnor,  to  grant  j.arcels  of  land,  na- 
rlantcd.  to  |i|,iiitrrs.   under  certain    terms   and    I'eserva- 
tions,  and  a  registei'  to  be  kept  for  all  cmvty  ar.,-es  ;  be- 
sides whi<h,  the   connuission  descends  toother  particu- 
lars, which  we  conceive  not  to  be  material   to  be  stated 
to  your  Lordships. 

By    these  iiittaiicua   it  apptuiis,  that  noaic times  the 


THE  king's   prerogative  ABROAD. 


193 


I 


Crown  has  thought  fit,  by  puaiouhir  express  provisioiLs 
under  the  Great  Seal,  to  creat<j  and  form  the  .several  parts 
of  the  Constitution  of  a  new  Government,  and  at  other 
times  has  only  granted  general  powers  t«  the  Governor 
tolrame  such  a  Constitution  as  he  should  think  fit,  with 
the  advice  -f  a  Counc-l,  coudsting  of  a  certain  number 
of  the  mhal.itants,  who  «ight  be  supposed  to  be  most  ca- 
pable  ot  judging  what  the  condition  of  the  country  re- 
quuvd    .,ul  this  subject  to  the  approbation  or  disallow- 
unce  ot  the  Crown  ;  but  widch  of  these  two  methods  is  fit- 
lest  to  be  allowed  in  th^.  case,  depends  upon  the  particular 
circumstances  of  the  plnce,  of  which,  we  apprehend,  we 
have  not  obtained  ^utHcieut  information  to  enable  us  to 
make  any  certain  judguio..t ;    but,  d' there  be  about  one 
thousand  tamilios  i„  the  tow.,  as  is  represented  in  Mr 
Godfrey  s  pap.r,  aiul  nuiongst  those  al,out  two  hundred 
ot    His    Majesty's  .ul^jeets,    as    in   Mr.     HaA  les'   paper 
(^^^hldl  he  explains  to  us  to  mean  British 'and  Irish) 
we  beg  leave  to  submit  it  to  your   Lo,.lships.  whether' 
upon  that  ccmsideration,  a   Constitution  framed  strictly 
aocordnig  to  ih.  forms  of  the  Comm.u  Law  of  Eugland, 
uiay  be  convenient  or  practicable. 

As  to  the  settlement  of  pn.pe.ty  we  apprehend  thnt 
r^^y  ,,e  doue  by  virtue  ol"  powers  to  be  given  by  His 
M^ye^ty  to  the  Governor,  for  making  grants  of  such  hou- 
«**s  and  lands  whereof  the  property  clearly  remains  in 
the  Crown(under  lit  regulations),  au.l  also' for  eor,lir>  - 
mg  the  titles  of  others,  by  some  general  declaration/in 
such  manner  us  shall  be  thougbt  proper 

Wo  U.g  leav>  ;o  lay  the..-  matters  betbrc  your  Lord- 
ships lor  your  consideration  becau.se  we  find  iho  r.citais 
"*  the  petaion  lead  H.ereto,  and  some  of -hem  may  be 
>.oeessa,y  to  receive  a  UHennin-ion   I>cH.,v  anv  (^.urt 


•o 


rm 


OPINIONS  OF  EMINENT  LAWYEHS. 

of  Judicature  whatsoever  can  have  its  due  effect ;  but 
the  prayer  of  the  said  petition,  and  your  Lordships' 
commands  to  us,  going  no  further  than  to  prepare  a 
draft  or  proper  heads,  for  establishing  a  Court  of  Civil 
Judicature,  and  the  objection  made  before  us  to  the 
Court  already  established  being  only  with  regard  to  the 
persons  thereby  appointed  Judges,  we  are  burnbly  of 
opinion,  that  if  proper  persons  are  expressly  nomiiiated 
Judges  by  His  Majesty,  in  the  commission  itself  (as 
is  above  mentioned),  the  present  form  may,  in  the  other 
parts  thereof,  not  be  improper. 

RoBT.  Raymond. 
December,  14,  1722.  Pur,.  Yorke. 

(2.)  77ie  opinion  of  the  Atfovneij-Gcnerdl  Northcy, 
that  iJie  Queen  migld  esf(d>Iis-h(i  Court  of  K([nit[i  in  Mai^- 
sacMtseti-'i'  Baij. 

[Extract  from  the  Charter  of  Massachusetts  Bay,  and 
Mr.  Attorney-General's  report  upon  a  clause  in  the 
Charti'r  of  the  Massachusetts  Bay,  relating  to  the  et,- 
tablishing  of  Courts.] 

"  And  we  do  of  our  further  grace,  certain  knowledge, 
and  mere  motion,  grant,  establish  and  ordain,  for  us.  our 
heirs,  and  successors,  that  the  great  and  (ieneral  Court 
or  Assembly  of  our  said  Province  or  territory,  for  the 
time  being,  convened  as  ini  re.siid,  shall  U>''ever  have 
full  power  and  authority  to  erect  and  constitute  .Tudica- 
tories,  an<l  Courts  of  Record,  or  otiier  Courts,  to  be  held 
in  the  name  of  us,  our  heirs  and  successors,  for  the  hear- 
ing, trying  and  decermining  of  all  manner  of  crimes, 
offences,  pleas,  processes,  plaints,  actions,  matters,  cau- 
ses, and  things  whatsoever,  arising  or  happening  within 


THE  king's    "REROGATIVE  ABROAD. 


195 


ow  said  Pu-ovince  or  territory,  or  betweoa  persons  in-" 
iKibit.ng  c.i-  residing  there,  whether  the  said  crimes  be 
cnmnrnl  or  civil,  and  wl,ot..r  the  said  crimes  be  capi- 
tal  or  not  capital,  and  whether  the  said  pleas  be  real, 
personal  or  n,ixcd,  and  for  awarding  and  making  out  of 
execution  thereupcui :  To  which  Courts  and  Judicatories 
^ye  d<x  herein,  for  us,  our  heirs  and  successors,  give  and 
grant  full  power  and  authority,  from  time  to  time,  to  ad- 
mmister  oaths  for  the  better  discoverv  of  truth  in  any 
matter  m  controversy,  or  depending  before   them.'^ 

On  consideration  of  this  clause,  if  there  be  no  other 
clauses  that  exclude  the  power  of  the  Crown,  I  am  of 
opinu.n  Her  Majesiy  may,  by  her  prerogative,  erect  a 
Court  of  Equity  in  the  said  Province,  as  bv  her  royal 
authority  they  are  erected  in  other  Her  ^Majesty's  Plant- 
ations ;  ana  it  seems  to  me  that  the  General  Assembly 
there  cannot,  by  virtue  of  this  clause,  erect  a  Court  of 
Equity. 

Edw.  Northey. 
AprU  21,  1703-1. 

(3.)  3fr.    lVc.st\9  opinion  on   tin  Kin,fs  rigid  to  e-^tah- 
h-sh  a  new  office  of  hnv  at  Barhadoes.  ' 

To  the  Right  Hon.,  the   Lords  Connni.ssioners  for  Trade 

;i!id  IMantations. 
My  Lords  ; 

In  obedience    to    your  Lordships"  couiniands,   I  }  ive 
perused  and  considi.iv.l  tbo  lollosvin-  Ac(s  ..I' AssemLH- 
"la.le  and  passed  in  the  Lland  of  Harbado-s;  and  as  x^ 
tlH'  lirst  Act.  entitle.!  -  An  A.f  to  .n.power  the  (Jo^-     nor 
•"■  <  'uuuiander-in-ciiic.f  for  fbe  time  being,  .       Council' 
to  conu^iute  the  value  of  powder,  arms  avA  ^aauiunition' 


196 


OPINIONS  OF  EMINENT  LAWYERS. 


'i.. 


i 


or  other  stores,  that  are  or  shall  be  found -wanting^n 
the  accounts  of  store-keepers  of  the  magazines  in  this 
Island,  and  to  reduce  the  same  into  money."  1  am  o^ 
opinion,  tha*^  it  is  not  pro])or  to  be  passed  into  law. 
Upon  occasion  of  this  Act,  I  have  been  attended  by  Mr. 
Tryon,  who  appeared  as  a  Solicitor  against  its  being 
cci.rirmed,  and  also  by  the  agents  for  the  Islai.d  in  de- 
fence of  it.  And,  as  to  the  subject  matter  of  the  Act,  vi/ : 
the  commuting  the  value  of  powder,  arms  and  ammuni- 
tion, for  ready  monej',  I  submit  that  to  your  Lordships' 
judgment,  upon  consideration  of  tlie  annexed  reasons, 
both  for  and  against  it.  that  were  left  with  me  Ly  the 
above  named  Solicitor  and  Agents. 

As  to  the  other  part  of  the  Act,  which  relates  to  the 
proceedings  against  Mr.  Peers,  late  one  of  the  store-keep- 
ers for  the  Island  of  Baibadoes  ;  (as  thv.rD  is  a  petition 
now  pending  in  the  Privy  Council,  on  the  liehalf  of  the 
said  Mr.  Peers  or  his  reprcsonttni.c, against  the  said  bill, 
upon  which  their  Lordships  h;ivc  not,  as  yet,  come  to 
any  determinatioi;  :)  I  l)elieve  your  Lordships  will  not 
expect  any  opinion  from  nie.  on  that  part  of  the  bill. 

But  then,  as  to  another  part  of  the  bill,  which  con- 
firms the  process  cx^"  '  d  by  the  Ma:  hal  of  the  Com- 
mittee of  Accouii*  1  am  of  ()i)inion.  t'uat  it  is  contrary 
to  the  King's  Prerogative  ;  inasmuch  as  the  committed 
do  thereby  prctcii;!  to  establish  a  new  oflicer  of  justice, 
and  such  an  othccr  as  no  committee  of  our  Hmise  Of 
Commons  at  h(jmc,  cvim-  yet  pretended  to  appoint. 

The  second  Act  is  entitled,  "  An  Act  for  the  better 
ordering  and  regulatingthe  proceedings  of  His  Majesty's 
Court  of  Common  Pleas  within  this  Island.'  Upim  occa- 
sion of  which  Aci.  I  have,  likewise.  Uovn  atteiidi'd  hy 
the  Solicitors  a^aiusl  its  being  passed,  and  f  beg  leaVft 


•:^ 


THE  king's    prerogative  ABROAD. 


197 


to  annex  to  my  report,  a  copy  of  such  reasons  against, 
and  objections  to  the  Act,  as  they  thought  fit  to  leave 
with  me,  upon  this  occasion  ;  and  as  to  the  subject  mat- 
ter of  the  Act,  I  am  humbly  of  opinion,  that  it  is  not  prop- 
er to  be  passed  ;  though,  at  the  same  time,  the  inten- 
tion of  this  law  seems  to  me,  nojionly  to  be  vciy  reason- 
able, bui  very  fit  to  be  passed  some  time  or  other,  when 
drawn  into  proper  form  ;  for,  if  a  special  verdict    )e  not 
found  in  any  case,  wliere  either  party  thinks  himself  ag- 
grieved by  the  judgment,  it  is  exceeding  dillicult,  if  not 
impossible,  to  have  a  remedy  by  appeal,  to  the  Coun<-il 
at  home;  since,  without  a  special  verdict,  the  whole  of 
the  case  caji  never  fully  appear.     If,  therefore,  they  had 
confined  the  obligation  they  put  their  Judges  under,  of 
directing  a  sjjccial  verdict,  when  desired,  to  such  causes 
only,  where  the  value  of  the  thing  in  question  was  equal 
to  what,  by  U[    :...  ,  .sty's   instructions,  they  are  at  li))- 
erty  to  Jii^pe;;.  home  •  -r,  1  should  have  thought  the  Act 
well  calculated  to  render  the  remedy  the  subject  there 
has   against  any  erroneous  judgment,  by  ^ :  ,^  ,oaling  to  the 
Privy  Council,    more  easy  and   practi"  c.le    anil  also  to 
make  the  dependence  of  those  people  still  -lose  to  .ur 
Goverinue.it   at  home.     Hut  the  oblignve  ail  Judges  to 
direct  a  special  veitlict,  without  an v  i-enson  assigned,  up- 
on the  bare  iXMpiest  of  the  party,  and  that    in  crises   of 
never  so  su.all  a  valiie.is  certainly  putting  it  in  the  pow- 
er .'••  the  ;lebtor.  most  um-easonably.  to  delay  his  creditor 
in  recovery  of  just  drbts.     But   the  penalty  inflicted 

upon  Judges,  who  deny  or  neglect  to  direct  a  special 
verdict,  -^vhen  desired,  b\-  making  them,  besides  an  in- 
capacity, liable  to  the  damages  sustained  by  the  ].artv, 
and  those  to  be  recovered  before  any  Jus.ice  of  l\Mce,' 
as  hi  case  of  .servant's  wages,  is  so  absurd,  that  1  believe 


mi 


■!»• 


a^Ui^i 


<f 


i  '  :  •  f  1 


198 


oriMONs  OK  r.Mu\r.\T  i.awvers. 


n 


vour  L()rdslu2)s   will   not  th'iik  it    proj)^-!'    to  l)e    passed 


into  law. 


As  to  the  several      cts  t'ollowiii^-.  viz :   •  A  supplement- 
al Act  to  the  Act  to  enable  and  enipow.T  the  Tn'i««.u;"ei' 


to  inn  unto  Dr.  Home,  the  arrears  due  hii 


II,  on   aeeoimt 


the  Fi 


reneh  prisoners,  (lininu  the  lale  war 


An  Act 


for  enlarging:;    tlie  time    ior  sale   ol'  eil'eets   attached   I 


Ol" 


parish  dues  in  arrear;"  ••  An  .\ct  to  empower  the  Treas- 
urer to  defray  the  e.xpen.-i's  of  the  late  (Jrand  Sessions, 
held  for  the  body  of  the  Island,  the  Uth,  lotlh  ]lth  and 
12th  of  December,  1718;'  "An  Act  for  abro-ratintr  tl 
oath  appointed  by  an  .^.  t  of  this  Island,  to  be  taken  1 
Attornies  employed  to  draw  up  special  verdicts,  and  ap- 


le 


)V 


pointing   another  oath   instead    tlu-eof: 


An  Act  for 


th 


e  encouragement  of 


Will 


lai.i 


M 


't   in   his  new 


)id- 


jection  of  makini:-  worms  and  alterin-^-  stillheads.  for  the 


bett 


er  improvement  of  distillalion 


1    1 


ia\c   no  obiec- 


tioii  to  their  being  passei'  into  1; 


Jmie   IS.  ITL'M, 


(W 


Kk  li 


w 


LSI'. 


li 

liilt 


(4.)  T/h    oj.iinni,  ,,f  th,    AUnni,  II  ,ni<l   S(,Il,lto)-( 


ren- 


ntl,  Uii-l,  r  ■nt</   Afiir 


/>/'/•  "" 


/<.v// 


i/it/  ii  ( iiir,  rinfii  ill  ill  ( I 


'III    AV, 

T'llil.     ilj 


ij  v  riiilit  ill'  (\Uil>- 


Oll 


th. 


■sii n;  mil  /•  of 


ihr  7 


ni-sf, ,  \. 


(f 


"•I 


To  thr   llight   lloiionibli'   the   I.o'd-  ( 


oiiniii>--'ioncrs  I'or 


'I'rad. 


d  P 


inlati»)|)- 


li 


_\    It   |i|ca-c  yoiii    I-oidship 


1    pursiia.ic 


.r 


>nr  l.ord-hips'  desiiv,  Higuifud  lo  ns 
vv  of  liic  iTfiiinst..  settiii-r  forth  that 
Hiiiniftcc  of  Com. oil  tor  IMaiiliilion  af- 
fairh,  had  reterreu  to  your   Lor<|>hip-    i  inem,;ruil  ul   the 


in    Mr    Hills  Irtt 
the  Loid-^    if  the  ( 


I 


THB  king'.'     PREftOGATIVE  ABROAD.  ]!)!) 

Tru8toesli.rc.stu!.lishi„.thoColonvorGeorgia.withdirec- 
tK.nsto  propose  a   .Irnft    >f  what  y,n.r  Lonlships  .hould 
tl..nk  nio.t  a.lvisahlo  to  Im-  ,1o„..  in  ordn-  to  obviate  the 
•l'H.cr.lt,e.s  (herein  su-^^^este.!.  a   copy  of  M'hieh  memorial 
vour  Lnnlsh.ps  had  directed  to  heeuclosed,  for  our  opin- 
•on.  ,n  uh.t  „,a„„er  th.   present  n.agistrates  and  other 
-n.<<"rs.   appoin.ed   hy  the  Trustees,  for  the  administra- 
^""•-f.instieeand   execution  of  ^.ncnnnent,  can,  npon 
'-surrender  offhe  Charter,  he  empowered    to  act  in 
tjcn-  respective  en.pluyn.ents.  till  a  new  administration 
"1    K<'vnnn>ent    .hall    he  setth.!       We    have   taken   the 
Nud    memorial    into  consideration,  and   are   of  opinion, 
♦l'^'<'fthe  .sur.vader   of  the  Charter,    l.v  the  Trustee, 
••'"'"•'t   he  postponed,  and  the  present  government  therJ 
lu'ptnptdlanew    method  of  adudninistering    the   new 
^^overrn.et.an  he  settled. (which  seem.s  most   advi.sahlo  ) 
""'l'i'"!>''>-  way  for  auihorising  the  present   magistrates 
and  oih.'crs  to.ontim.e  in  theeven-ise  <,f  their  respe.d- 
■  ve  ofiices    in  '\n'  mean  tiu.e,  wili  h,-,  li.r  His  Majestv  to 
■■^'.'^iH'aproclan.ation   lor    that  purp..se.  under    the  Great 
V:d  of  (;,vat  Hritain.   to  he  puhli^hed  in  (ieorj-ia. 

n.   I!  \  DKU. 

Fehr'iiirv  2-')    !7V'  w    \i 

(■».)    Mr.  F,t),<'s  nj,nni,n,ou(h,      h'i  i,,/.,  j,,..,    ,■  nf  v<if- 

To  the    Hi.ht    llonorahl..   ihr    Lonl-  C nnssionrrs   for 

Trade  and  I'l.antatious. 
M.\     I.Mrds; 

In  ohrdienrr  to  so,n-  f--rdships' conunands.  sip,ifie<l 
''""^•'•>  '^'•-  "'"  "  l'^iN".-us,d,.,rd,,n  A.t.  pas.sed  i,, 
NVw  York,  ml, tied.      Am  Act    lor  the  l.v.pM.nl  .-lections 


m 

in 


*  I 


200 


OPINIONS  OF  EMINENT  LAWYERS. 


of  ropi'osoiitutiv.  to  serve  in  General  Asnenibly,  and 
for  the  frequent  callinj^-  and  meeting  of  the  Gencal  As- 
seinbly,  so  ek'cted ;'  which  enacts,  that  the  General 
Assembly  of  this  colony  shall  be  held  once  a  year,  at 
least,  at  New  York,  nnlciss  the  Governor,  with  the  advice 
■)f  amajorit\'  of  the  Conncil,  (which  is  to  consist  ofhve.) 
shall,  under  the  seal  of  the  colony,  appoint  anothei  place. 
It  ;'iirther  en...'ts,  that  in  six  months  after  the  dissolu- 
tion or  determination  of  every  As.>end)ly,  new  writs  are 
t(;  oe  issued,  '"or  electing  a  new  Assembly,  winch  is  to 
be  held  once  a  year  ;  and  every  future  Assend)ly  is  to 
have  continuance  for  three  years  only,  to  be  accounted 
from  ih  'day  of  their  meetintr  ;  and  there  is  a  clause  to 
ilftcrmiiic  the  present  Assi'uddy  on  the  15th  dune  1730, 
ui.iess  the  Go\-ernor,  for  th<'  timi>  being,  shall  diss(dve 
it  sooner.  I  l)eg  leave  to  ob,  .  rve  to  your  Lordships, 
that  I  think  this  Act  is  a  very  high  iid'ringement  upon 
the  prerogative  of  the  frown  ;  Ibr  it  takes  ;iway  that 
undoid.led  right,  which  the  Crown  ha~;  .ihva\  s  exen  i.^ed, 
of  (ailing  and  contiiuiiu.;  he  .\sseml)ly  of  the  ccdonv, 
at  .-"Uch  tiuu's  and  as  long  as  it  was  thought  necessary 
lor  tl,r  public  s.rvice,  and.  then-lore,  when  aw  h  a  male- 
rial  liiiKivatinii  ,,  altemptfd,  ,hen>  oii^lit  t<  <■  some 
Acr\  .-tion.i:  .lud  cogent  reasons  to  induce  w  >'r  Lord- 
ships to  con-fut  fo  i».  For  my  part,  I  ha  u  lieard  none, 
and  thcrci'on-  am  liund)ly  ofopimon,  th;it  it  ought  to  l)e 
itipi  alcd. 


.Tulv  '-'(It;.     I7.",S. 


Fraa. 


r  ANK. 


1? 


\''  IV 


{*>  )    77..    '>j,t'it,(>/i  of  ('hi,j'.Ju.s(i'i    Muiri.s,    ill 
Jii'Metf,  on  (he   Kiii(j.-i  powrr  of  ^nt'txtf. 

Till'  Act  «»f  general   pardon,  n  nv     uder  our  c    ...dera- 


THE    KING  s   PREHO(;aT!VE  ABROAD, 


201 


tion,  I  think,  cc.n^ist.  of  tuo  parts  ;  the  one  is  to  par- 
d(Mi  all  those  persons,  who  have  heen  concerned  in  or 
are  guilty  ol'  any  of  the  late  riot,  or  insurrections  in  this 
1  rovinee  ;  the  other  is.  to  stop  and  suspend  all  process 
and  proceeding  again.st  those  persons  who  are  already 
indicted  1-or  high  treason,  or  such  as  may  hereafter  he 
accuse.1  of  that  crime,  until  and  t..  the  intent  His  Ma- 
jesty s  pleasure  may  hi'  known. 

1  loo],  upon  thi.s  to  he  a  matter  of  very  great  import- 
ance, perhaps    the   gr.Mt...t   that   ever    yet   was   under 
.e   consideration   of  the   Council   of  N^w  Jersey,  and 
iHM-e  ore.  wish  that   things    ha.I    I.e.,  so  managed  as  to 
l>ave  hrought  this  allidr  helore  us  earlier  in  the  session, 
that  we   might    have   Had    the   greater   time   to   weigh 
and  consider  what    was  proper  to  he  done  ;  however,   i 
«hal    deliver  i.,y  opin;,.,,  a.d  advice  upon  the  matter   in 
as  clnir  a    Manner  as  the    shortness  of  the  time,  and  i 
al)ilities  will  permit. 

lam  clearly  of  ..pinion  (hat  l.v  Hi.  Majestv's  com- 
mission to  His  Kxcelleuey.  under  the  (Jreat  si-al  of  (hvat 
'*'■''''"''  "''^  Kxcell.Miey  has  fnl|  i^nver  and  authoritv  to 
«'vt-nd  His  Ah.j,.,v',  ,,,,,,,,,    ,,,^,^^.,^^,,.^^,^^^^^^^ 

tl".sethat  li've  l,ee„  eom.ern.Ml  in  the  late  riots  and  iu- 
Nurrect.on.s  within  this  e.,louy  ;  pnuided,  the  crimes  of 
"l.i.h  »hey  stan.l   aeeused,  do    not   aiuo.uit  to  hi-d.  trea- 

-n..r  murder;   these  I.emg  th. y  erinies  excepted  in 

""''•■'""^••<'l>l..Tovai  -ommi^  -uu  which  gives  power 
to  extend   His  Majesty's  iik'I.v. 

n-f  '•'""••"t'mkit.hvauvnn.ans,  prudent  ,vn;.yi. 
-l-l--.nlIisKxeelleuev.toMM.   thepowe,     ..given,   in 

""'"'^ .'.•  proposed    l.v  the  general    pardon    I.efore   „. 

"II   >l."    I-.g.slature    MOW     Httuig   have    made    provision 
clleetually  to  .treiigt  hen  the  l.uids  oi  \U,  Majesty's  gov- 
27 


i  ''I 


202 


OPINIONS    OF    EMINENT    LAWVERS. 


JPlii  M 


m 


eriiment,  so  as  to  enable  tliem  to  protect  the  j^ersons 
and  estates  of  the  people  ol'  the  ProAnnce,  and  to  carry 
into  execution  the  laws  of  the  land.  When  that  is 
done,  in  a  manner  satisfactory  to  the  frovernnient.  then, 
and  not  before,  I  luinilily  conceive  it  Avill  be  prudent 
find  advisable  in  His  p]xcellency,  to  j^rant  and  extend 
His  Majesty's  fjracious  mercy  to  the  persons  concerned 
in  the  said  late  riots,  which  will  then,  in  my  opinion, 
tend  very  nmch  to  restoring  the  peace  ol'  the  Province, 
a^  most  of  the  persons  concerned  are  an  ignorant  pit)- 
ple,  encouraged  and  set  on  by  some  artfid  and  designing 
men. 

As  to  tlie  second  ])art  of  the  Act  of  general  pardon.  I 
must  declare  it  as  my  judgment  and  opiniim,  that,  nei- 
ther by  His  Majesty's  connnission,  noi'  liy  the  article  of 
the  royal  instnictions  now  (•■>iimiimi(  ated.  has  His  ?iX- 
cellency  any  power  or  authority  to  suspend  the  process, 
or  stop  the  proceedings  iu  cases  of  /,/\//t  tini-^ott.  The 
powers  of  pardoning  giver  by  the  connnission,  aie  full  as 
to  nil  crimes  iuit  treason  and  nnirder,  which  being  exj)r«'s8- 
\y  reserved  and  excepted,  no  construction,  in  my  opinion, 
can  possibly  <'xten<l  the  words  so  as  to  give  jxtwcr  to  su.s- 
pi'iid  or  stop  tlie  proct'cdings  in  tiio-c  cases,  which  will, 
in  efi'eci.  be  pardt)ning,  as  the  parties  ni-e  (and  it  is  in- 
tended shall  reinain  )  at  ful'  lilterty,  and  iiiav  remove 
themselv<'H,  and  their  elVects  to  another  part  of  the 
World,  'ong  before  \\\>  Majeslv's  pleasure  cm  be  Iviiown. 

\s  t.(  tlu'  construction  now  communicated,  it  is  ccr- 
tuinly  a  very  good  onv,  and,  auioiig  niauN  others,  slu'ws 
His  Maj'stys  great  car  .mkI  pati'rnal  alVectiou  Inr  these, 
his  remote  don\inions;  Imr  I  fjiink  there  i'^  iinlliinL':  coii- 
tftiiicd  ill  it,  ihat  can  Ik."  construed  to  givi'  a  power  to  do 
what  is  now  proposed. 


THE  king's  prerogative  ABROAD. 


203 


T)ie  miiterial  words  are,  "and  if  anjthirg  ,><hall  hap- 
pen, that  iiiav;  be  of  .advantage  and  security  to  our  said 
riovuice,  whieh  is  not  herein,  or  by  our  commission  to 
you,  provided  tor,  we  do  hereby  allow  you,  with  the  ad- 
.  ice  and  consent  of  ouv  Council,  to  take  order,  for  the 
present,  therein,"  iScc. 

This  instruction  seems  to  me  justly  calculated  to  em- 
[)owcr  the  (iovernor  to  act  for  the  advantage  and  secu- 
rin-  of  the  Province,  in  extraordin 'ly  cases,  where! i    the 
commission  and  instruction  are  silent;  but,  in  my  humble 
opinion,  was  never  intended,  nor  can  it  be  construed,  to 
e\t<-n(i  to  tbings  cxpirssly    i.roviik'd  for  by  the  commis- 
sion, which  tbc  powers  of  pardoning  und  reprieving  are, 
so  far  as  His  Ma.jest\  intended  they  should  be  u.sed;  and 
as    the  power  of  pardonin^t    avason   is    there  e.vpressly 
reserved  and  ex    >plcd,  I  cannot  think  the  general  words 
111  the  instruction,  were   intended   to  give  a  power  con- 
tradictory U)  the  commission.      Aiid  I  conceive,  that  as 
the  King's  instructions  leceive  tiieir  greatest  force  from 
the  commission  under  the  (Jieat  Seal,  so   the   urantini' 
tlie  sus]).'nsion  proposed  under  the  powers  given  by  that 
instruction,  will  l)e  doing  an  act.  by  virtue  of  the  rovil 
ot)inmis,sion,  which   tliat  v»-ry  commi.ssion  prohibits  and 
excepts  in  express  words. 

Having  declared  i!i\  sentiments,  iliat  His  Excellency 
li:i-  nu  power.  !>y  bis  commission  or  insti  iictions,  to  gr-oit 
the  suspension  projtosed,  it  will  \>v  needle.xs  to  enter  fir 
into  tlie  consideration  of  the  IcgaJitx  of  tvingui;  the 
hands  of  the  ('ourt^  o'"  L;iw,  in  -u<  b  cas'.s,  which  seenw 
to  iiie  to  be  stopping  the  ordiuMty  course  of  the  laws, 
ai,d  exei-i-i.-iiiir  little  less  than  ii  dis|ieiihiiig  power,  not 
warii.nteu  b\  the  Uon.stitutiou. 


.( 


4\ 
"11 


204 


OPINIONS  OF  EMINENT  LAWYERS. 


MM 

4i  ' 


If 


I 


111  I  f 

It 


How  far  it  will  be  prudent  and  advisable,  in  His  Ex- 
cellency, to  grant  the  (suspension  proposotl,  if  he  Juid 
jwwer,  is  next  i)  be  considered,  and  greatly  depends 
npon  the  state  and  crrcunistances  of  the  Province,  Avhich 
is  very  Avell  known  to  every  «ne  here  present,  and 
therelbre,  need  not  be  mentioned.  But  certain  it  is 
that  things  would  never  have  gone  tiie  lengths  they 
had  done,  if  the  Legislature  had  interposed  when  this 
rebellion  was  young,  and  before  it  had  come  to  its  matu- 
rity, nor  need  it  continue  longer,  if  they  will  exert  them- 
selves, in  support  of  His  Majesty's  authority,  and  the 
laws  of  the  land. 

In  my  humble  opinion,  the  Province  is  not  in  such 
circumstances  as  to  make  it  prudent  or  advisiJ.le  in 
the  government  to  stretch  their  ])ower  in  favor  of  a  few 
people,  who  have  thrown  olf  tlicir  allegiance.  There  is 
power  and  strength  enough  in  the  I'rovince.  to  put  the 
laws  in  execution  ;  His  Kxceliency,  with  the  Council 
and  A.ssembly,  can.  if  tliey  will,  presently  ])ut  a  stop  to 
those  disortiers,  and  were  they  once  inclined,  these  dar- 
ing jieople  would  i)resently  siicak  into  their  hiding 
jtlaces,  and  not  venture  to  shew  tiieuiselves  in  o])posi- 
tion  t«»  the  gov.rnni.nr  Mut  while  we  want  inclina- 
tion, and  wliilc  these  prnjil(.  kii<>\v  what  we  do,  all  the 
mild  measures  proposed  will  Ite  incllectMal.  and  onlvtend 
to  bi-iug  the  goNcniment  into  gre.  ler  contempt. 

Had  these  daviii;'  distuilieis  not  been  countenanced 
by  some  men  of  note,  hail  they  not  depended  upon  the 
Hupport  and  protection  of  men  nuich  above  them.selves, 
they  never  would  have  ventured,  thus,  to  have  tlowti  in 
the  face  of  His  Majesty's  Government,  and  to  iiave 
thrown  olf  their  allegiance.       Had  thev  labored   under 


li 


THE  king's  prerogative  ABROAD. 


205 


any  injustiro  or  oppression,  they  have  had  full  liberty, 
and  have  hud  their  coniplainta  before  the  Assembly,  tuJ 
many  of  whom  want  not  inclinations  in  their  favor  ; 
a-id  as  they  have  been  fully  heard,  and  no  one  instiince 
of  oppression  or  injustice  made  out,  even  to  the  satis- 
faction of  the  Assembly,  it  must  be  presumed  their 
complaints  ure  only  clamor,  designed  to  draw  in  weak 
and  unwary  people,  to  join  them  in  their  unlawful  prac- 
tices. 

R.  H.  Morris. 


T'-'ni  I 


If; 


How  far  Colonists  carry  EnolisJi  Laws. 


-^  •- 


1^ 


III.  How  far  the  King's  subjects,  who  emigrate, 
carry  with  them  the  Law  of  England :  Fimt,  The 
Common  Law  ;   Second,  The  Statute  Law. 

i^irst.  As  to  the  Common  Law. 

(L)  Ml'.  WcM'' -9  opinion  oti  this -suhfitsct  III    r720. 

The  Common  Law  of  England,  is  the  Conunon  Law 
of  the  Plantations,  and  all  statutes  in  alhrniance  of  the 
Common  Law  pas.sed  in  England,  antecedent  to  the  set- 
tlement of  a  colony,  are  in  force  in  il:\t  colony,  unless 
there  is  some  private  Act  to  the  contrary  ;  though  no 
statutes  made  since  those  settlements,  urc  there  in  force, 
unless  the  cohmies  are  particularly  mentioned.  Let  an 
Englishman  go  where  he  will,  he  carries  as  much  of 
laAv  and  liberty  with  him,  as  the  nature  of  things  will 
bear. 

(2.)  Ike  opinion  at  tin  AtfnriH  ,,'  and  SnJicitor-Gen- 
eml,  Pratt  and  Vorh.  that  tlu-  h'inf/\  ■'^id,j,,fii  cam/ 
n'ith  them  the  Coininon  Lair,  irhercnr  thtij  m<ii/  inrm 
■'<ettltment-9. 

In  respect  to  such  places  as  have  been  or  shall  be  ac- 
quired   by    treaty    or  grant,   from  any   of   the    Indian 


% 


HOW  FAR  COLONISTS  CARRY  ENGT.iSH  LAWS.  207 

Princes  or  governments,  your  MajeHty's  letters  patent 
are  not  necessary ;  the  property  of  the  soil  vesting  in  the 
grantees  by  the  Indian  grants,  subject  only  to  your  Majes- 
ty s  right  of  sovereignty  over  the  settlements,  as  Eng- 
lish settlements,  and  over  the  ir '.habitants,  as  English 
.subjects,  who  carry  with  them  your  Majesty's  laws 
wherever  they  form  colonies,  and  receive  your  Majesty's 
protection,  by  virtue  of  your  royal  Charters. 

C.  Pratt. 

C.  YoRKE. 

(3.)  Mr.  h\me,  opinion  how  far  siilject^  can  he  de- 
t<ii  '>ed  in  ciuitoily,  an  a  cluinje  of  riracy. 

To  the  Right  Hon.,  the  Lords  Commissioners  for  Trade 

and  Plantations. 
My  U)rds  ; 

In  obedience  to  your  Lordships'  commands,  signified 
to   me  by  Mr.  Popple's  letter  of  the  3d  of  May  last 
whereby  your  Lordships  are  pleased  to  desire  my  opin- 
ion, in  point  of  law,  how  iiir  Mr.  Worslev,  Governor  of 
Barbadoe.,  can  be  ju.stifud  in  detaining  two  persons  in 
custody  upon  that  island,  upon  suspicion  of  piracy,  sup- 
posed   t^  :.   committed  on  the  Portuguese  factory    at 
Cape  T  opez.       I  have  considered  of  the  matters  so' re- 
ferred, and  am  humbly  <,f  opinion,  that  Mr.  Worsley  can- 
n..t.iustifv  the  detaining  the  persons  anv  longer  in  cus- 
tody, upon  suspicion,  without  l„inging  them  to  a  trial 
and  winch,  he  .says  in  his  letter  f.,   vour   Lord,.hips    he' 
declines   .ioin^.    b.ranse    he    is    apprehensive    that    for 
want   of  ov.dence  they  will  1      acquitted;   therefore,  I 
llMMk  they  ought   to   b.  ,eic,,sc.,l  ;  but  it  mav  b.  proper 
lor  Mr.  \\  orsley,  if  the  suspicions  are  verv  stn.ng  against 
tlieiu,  not  to  disrharge  them  till  such  liinc  -lus  t!...      bav.- 


M 


if? 

it 


^f 


.'  .\i^ 


208 


OPINIONS  OF  EMINENT  LAWYERS. 


given  security  for  their  appearance,  to  answer  any  mat- 
ters that  may  hereafter,  in  a  reasonable  time,  be  charged 

upon  them. 

Fran.  Fane. 
July  14,  1726. 

/Second.  As  to  the  extension  of  the  Statute  Law. 

(1.)  The  Attoi'ney-Geiieral  Yorl€''s  ajyinian  on  thvi 
sulject,  in  1729. 

Qua  re. — Whether  such  gen  jral  Statutes  of  England  as 
have  been  made  since  the  date  of  the  Charter  of  Mary- 
land, and  wherein  no  mention  is  made  of  the  planta- 
tions, and  not  restrained  by  words  of  local  limitation, 
are,  or  are  not,  in  force,  without  being  introduced  there 
by  a  particular  Act  of  their  own  7 

I  am  of  opinion  that  such  gene  al  Statut<^s  as  have 
been  made  sii:  e  the  settlement  of  Maryland,  and  { re 
not,  by  express  word.s,  located  either  to  the  i)laiitations 
in  general,  or  to  the  Province  in  particular,  are  not  in 
force  there,  unless  they  have  been  introduced  and  de- 
clared to  be  laws,  by  some  Acts  of  Assembly  of  the  Pro- 
vince, or  have  been  received  there  by  long  uninterrupted 
usage  ur  practice,  which  may  import  a  tacit  consent  of 
the  Lord  Proprietor  and  the  people  of  the  colony,  that 
they  should  have  the  force  of  a  law  there. 

P.  YoRKE. 

By  Stat.  25,  Geo.  JL  ch.  6.  s.  10,  it  appears,  that  the 
Legislature  considered  u-sa<je  as  sufficient  to  have  ex- 
tended an  Act  of  Parliament  t<:>  the  cohmies. 


f8f  ■ 


HOW  FAR  COLONIST*  CARRV  ENGLISH  LAWS.  909 


(2.)  Ihe  opiaion  of  the  Attorney  ami  Solicitor,  Hen- 
ley and  Yorle,  th-J.  the  mJject.  emigrating,  do  cwrry  toith 
them  the  Statute  Law,  in,  1757. 
My  Lords  ; 

In  obedienc.    to  your  Lordships'  commands,  signified 
to  us  by  Mr.  Pownal,  by   letter  dated  April   Lst    1757 
accompanied  with  an  enclo.sed  letter  and  paper.s  'which 
he  had  received  li-om  Jonathan  Tolcher,  Esq.,  Chief-Jus- 
tice of  His  Majesty's  colony  of  Nova  Scotia,  relating  to 
the  case  of  two  persons  convicted  in  the  Courts  there 
of  counterfeituig  and  urxring  Spanish  dollars  and  pista^ 
reens,  and  requiring  our  opinion,  in  point  of  law,  there- 
on ;  we  have  taken  the  said  lett^^rs  and  papers  into  our 
con>,ideration,  and  find  that  the  question  upon  which  the 
case  of  tho..e  two  persons  convicted  of  high  treason  de- 
pend«,  IS  this  :  Whetlier  the  Act  of  Parliament,  1st  Mar 
ch.  6.,  en     .od  an  Act  that  the  counterfeiting  of  strange 
coim  (being  current  within  this  realm),  the  Queen's  sign 
manual  or  privy  seal,  to  be  adjudged  treason,  extends  ^• 
Nova  .scotia,  and  is  in  force  there,  with  respect  to  tb 
.u^unterleiting  Spanish  dollars  and  pistareens  in  the  said 
Province  ? 

And  we  are  o^<.)pinion,  first,  that  it  doth  not;  for  that 
tae  Act ,«  expressly  restrained  to  the  counterfeiting  of 
U)reign  com,  current  within  this  realm,  of  which  Nova 
Scotia  is  r  )  part. 

Secondly,  we  are  of  opinicn,  that  tho  proposition 
adopted  by  the  Judges  there,  that  the  inhabiUiat.  of 
the  cohmies  cu^rv  with  them  the  Statute  Laws  of  this 
realm,  ,s  not  true,  :i^  a  gener.al  propositi  ^  l,ut  dopejul^ 
upon  circumstHuces  :  the  effect  of  their  Chart^'r  •  u.sagV 
and   acts   of  tiieir    Legislature;  and  it  would   L  both 


it 


»      '■        I' 


210 


OPINIONS  OF  EMINENT  LAWYERS. 


inconvenient  and  dangerous,  to  take  it  in  so  large  an 
extent. 

And  thirdly,  we  are  of  opinion,  that  the  offence  can 
only  be  con.sidered  (is  a  high  misdeireanor,  unleR.«s  there 
are  any  provisions  in  any  Charter  granted  to  that  Pro- 
vince, which  make  it  a  greater  offence,  to  which  we  are 
entirely  strangers. 


May  18.  1757. 


R.  Henley, 

C.    YORKE. 


■  ) 
*  Ik 


--^* 


(3.)  27ie  opinion  of  the  Advocate,  the  Atfoi'/ietj  and 
Solicitor,  Hay,  Yorhe  and  Norton  on  the  same  subject, 
in  17G2. 

Qmere.—TioGi^  the  Xci  of  the  28th  Hen.  VIII.  ch.  15., 
entitled  ''For  Pirates,"  (being  passed  before  the  ostablish- 
ment  of  any  of  the  British  Colonies)  extend  to  the  said 
colonies ;  and  if  it  does,  how  are  the  regulations  there- 
in set  down,  to  be  executed  ] 

Answer. — We  r  i  of  op'iion,  that  the  stat.  28  Hen. 
VIII.  does  extend  to  the  case  of  rmirder,  committed 
any  where  on  the  high  seas  ;  and.  consequently,  that  a 
commission  might  issue  on  the  present  case,  into  any 
county  witlun  the  "ealm  of  England,  to  try  the  offend- 
ers who  might  be  brought  over  for  that  ])iupose,  and  the 
v/itnesses  examined,  and  jury  sworn  before  such  Com- 
missioners, unless  that  mode  o*'  trial  should  be  deemed 
inconvenient, 

^2„^p;.f._Does  the  Act  of  the  11th  and  Pith  Will. 
IIl.,ch.  7.,  entitled  "An  Act  for  the  effectual  suppression 
of  Piracy,"  or  the  7th  sec.  of  Geo.  I.,  ch.  11.,  entith^l 
"An  Act  further  preventing  burglary,"  contain  sufficient 
authority  for  the  trial  and  punishment  of  persons  upon 


HOW  FAR  COLONISTS  CARRY  ENGLTSH  LAWS  211 

J,,,,,,.,,.     We  are  cf  „pi„i„„,  ,|.„t  „eitherof  the  Act, 

U>  aiTect  tl,.  ea.,e  „f  ,nu„ler, ;  the.,-  relate  merely  to  such 
n,e,asare  ectua,  or  inferio,   ^  the  .pecioj  ^articu 

Iiim  expressed.  ' 

March  4,  1762.  ^^'''' 

Vv.    lORKE. 

F.  Norton. 
(i)    -.^opMo,,  of  Ihc  Attorney  ami  Solicitor-Oen,- 

gmmilhj,  m  dmumom  of  the  Crotn,  in  17C7. 
May  It  please  your  Lordships ; 

Ih  .*«lie„ce  to  your  Lordships'  commands,  signified  to 
u;  I..  Mr.  PownalPs  letter  of  the  ,2tU  of  Junc'thafwe 
»"ul<  take  „,to  our  cousideration  an  Act  of  Parliament 

,    -cdm,h..,2,hofQ„ceuAnn..s,a,.2.ch,18.,enti-' 

..cu    An  Act  lor  the  preserving  of  all  such  ships  and 

60«]s,  whK-h  shall   happen  to  be  forced  on  shore  upon 

ho  coast,  of  this  ki„gdon,or  any  other  of  Her  Majes  yC 

4.1   01  Ceo.  I.  ch.  12,  e„,„led -an  Ac,  f  ,r  enforcing  and 
"akn,.,-  perpetual  an  Act  of  the  12,1,  vcar  o,'  Her  hUe  Ma 

>-;-.-,i,lcdMuAct,,rpre.scrvinga,ls„chs  '^^^ 

«.. ..!..,  creo,.  as  shall  happen  ,„  K.  fo,™Un  shore  or 
»  ran,  ed  up.u,  the  coast,  „f  ,his  king,l„u,.  or  a„v  othcrof 

m-.to,  death  on  such  as  shall  „;!fu||_,.  ,,^^  ^j      _ 


f  f 


\- 


lit 


im 


life'-! 


lii 


If  ' 


II: 


1 


212 


OPINIONS  OF  EMINENT  LAWYERS. 


strov  ships;  and  that  we  Avonld  f!;ivo  our  opinion, 
whether  tlie  said  Acts  do  extend  to,  and  are  in  force  in 
His  Majesty's  colonies  and  })lantations,  in  America ;  we 
have  taken  the  same  into  our  consideration,  and  are  of 
opinion,  that  as  the  title  of  the  Act  of  the  12th  of  Ann. 
stnt  2.  ch.  18.  expressly  imports  to  he  "  an  Act  for  pre- 
serving ships  and  goods  forced  on  sliore,  or  stranded  up- 
on the  coasts  of  this  kingdom  or  any  other  of  Her  Majes- 
ty'H  dominions,"  and  tlu' enacting  part  has  words  extend- 
ing to  Her  Majc-^ty's  doniinions  ingiMX'ral,  the  .said  Act  of 
the  12th  of  Aim.  extends  lo  and  is  in  force  in  His  Ma- 
jesty's colonies  and  plantations  in  America,  notwith- 
standing the  special  promulgation  of  the  law;  and 
wme  other  pntvisions  in  it  are  applicahle  (mly  to  this 
kingdom. 

We  are  likewise  of  o])ini(m,  that  po  much  of  the  Act 
of  4th  Goo.  I.  ch  12.  as  declares  the  12th  of  .\nn.  to  he 
periK-'tual,  extcids  to  America.  Hut  the  thinl  clause  of 
that  Act,  wliicli  introduces  ;>.  lu-w  crime,  hy  a  pii)\  i.sion 
altogether  inde|H.'n(h'ut  of  the  former  part  of  the  A(;t, 
and  ma<le  to  render  ;ni  Act  of  the  first  of  Ann.  more 
elVectual.  we  are  inclined  to  tli  rik.  doe.>  not  extenil  to 
His  Maje.st_\  M  colonic-  and  [ilantjilions  in  America,  tiuit 
clause  Ix'ing  eNpre-^scil  in  general  terms,  without  any 
reference  to  the  colonics;  and  llic  I  1  tli  of  Cieo.  I.  ch. 
20.,  s.  7.,  which  directs  the  ii.odc  of  |)id.si;cut  ion  ol"  those 
offences,  when  coininittcd  witliin  the  hody  of  any  coun- 
ty of  this  realm,  or  npni  lli"  liiij,h  seas,  making  no  Tucn- 
tion  of  llic  manner  «f  trial,  if  siicli  olfcnccs  should  Vio 
coramitU'd  in  any  ol  lli>  .Majesty's  plantatifms  or  colo- 
nien  in  America 

W.   I)l    (.UKV. 

June  2o,  17(j7.  E.  W  illes. 


HOW  FAR  COLONISTS  CARRY   ENGLISH  LAWS.  213 

(5.)  The  opinion  of  tlu:  Attorney  and  Solicitor-Gene- 
ral,  haymond  and  Yorke,  how  far  tJce  Statute  of  Mo- 
nopoUes  extends  to  the  Colonics. 

To  the  Right  Honorable,  the  Lords  C<.,nmissioners  for 
Trade  and  PkutatioiiH. 

In  obe.Henco   to  your  Lordships'  coinnmnds  signified 
to  us  hv  Mr.  Popple,  by  his  letter  dated   the  L>4th  of 
June  last,   whereby  he   aeouaints  us.  tlmt   His  Majesty 
having  been  pleased  to  refer  U>  your  Lordships  the"  peti- 
tion of  Mr.  Shard  and  others,  for  a  patent  for  the  sole 
curing  ol  sturgeon  in  America,  an.l  importing  the  same 
>ntoth..s  kn,g,lom;  and  your  Lord.ship.s.  beins;  desirous 
to  have  the  ,s.i„,e  effectually  --arried  on  without    being 
made  a  stoek-jobbing   business,  were   pleas.d  t<.  re.p.ire 
our  opinu.n.  in   what   manner  a  pat,.„t  mav  be  granted 
them.     To  answer  what  your  Lordships  propose,  in  that 
point,  we  have  considered  of  the  luatt.M-  therebv  referred 
to  us,  an,lnre  of  opini<m,  that  if  such  a  patent  as  is  prave.l 
by  the  petitioui'r,  might  be  granted  U  l„w,  the  ma'-ing 
.t  a  st..ck,jobbing  business  may  be  prevnte.!.  bv  insert- 
ing a  ela.^,.  therein  for  that  purpose;   but,  upon  "the  ease 
a.>^statvdtons,    we  apprehend  .bat  tb..  art  pntrn-ird  to 
l;y  the    pHifoner.  do.s    not   app,.ar  to  b.  „  „..w  inven- 
""'"'"'    -•■'-i.h   tl...    sole    u.se   is  grantabk- ;   besi.l.s  ,|,.t 
»«'!nvv..n   .I.M.btful    uponconsi.ierationnftlH.  Statute 

;';"--'^'-i-.'-.I,..:5,H|,Hher.b..p,..n,,M,v '  tb. 

<'"wn.  fur  making  grant,   of  ib,.   uahur,  eMlii^v..  of 
"""•'•  P«''--"ns.  CM,. M.ls  to  til,.  pJautaliMMM. 

-   ,  Hour    i;  \N  MOM). 

•Tulv   IS,  1720  I,  .. 


■  S  i 
t  I  i 


;  s 


ill 


i    i  y 


'4i 


214 


OPINIONS  OF  EMINEiVT  LAWYERS, 


I 


y 


(6.)  The  opinion  of  the  Attovnoj-Ocinral  Yorl 
1727,  Imw  far  Statutes  eH^nd  to  the  Isk  of  Man. 


e,  III 


1 


of 


that 


ofli 


opinion,  that  no  otlicci  of  the  Ciij^toni.s  can, 
by  virtue  of  any  deputation  from  tiie  Conuuissionor.s  of 
the  Customs  in  Groat  Britain,  make  a  seizure  in  the  Isle 
of  Man  ;  because,  a.s  I  take  it,  tiieir  conuiiissitm  doth  not 
extend  to  th''t  Island  ;  but  1  conceive  that  the  clause  in 
the  Act  7,  Geo.  1.,  upon  which  Uiis  questicm  arises,  gives 
power  to  any  perhon,  whatsoever,  to  seize  goods  inii)orted 
into  the  Isle  of  Man,  contrary  to  the  provision  of  that 
Act ;  and  that  those  general  words  are  not  restrained 
as  they  are  in  Kngland,  by  the  operation  of  the  Act  of 
frauds,  14  Car.  II.,  c.  11.,  s.  15,  which  directs  seizures  to 
be  n^ade  by  the  officers  of  the  Customs  only,  for  that 
clau.se  extends  only  to  England,  Wales  and  Hi-rwick- 
upoii-Tweed  ;  thcefore,  I  think  officers,  so  deputed,  may 
make  seizures  in  the  Isle  of  Man.  for  importations  con- 
trary to  the  Act  7*^  Ge<»rgii,  and  prosecute  tlie  same  to 
condemnation,  in  die  proper  Court  there,  but  this  must 
be  done,  not  by  virtue  of  their  (U-putations,  but  as  com- 
mon persons,  by  force  of  tlie  Act  of  i*aili;uiient 

r.    YoHKK. 

August  23,  1727. 


HOW  FAR  COLONISTS  CARRY  ENGLISH  LAWS.  215 

(7.)  The  opvmon  of  the  Atlorney  and  ,Solieito,'.Gm- 
cml  1  a,^  and  Wear;,,  a,r  the  e^temion  o^  the  La,o.  of 
E.,I^to  the  CoionU.,  and  on  other  aiu^l^gous  iojs 

To  the  Right  Ho,.orable  the   Lords   C^nmLs.ioner«    of 
-rado  and  Plantations. 

May  it  plea.se  your  Lord.«lups  • 
In  obedience  to  your  Lordships'  c'onimand.s,  sipiified  to 
us  by  Mr.  PoppK,  b,-  ,,,  j.^ter  dat^-d  the  4th  of  '  bruary 
ast,  tran.nnttin«  to  us  the  annexed  copy  of  an  order  of 
then-  Excellence.,  the  late  Lords  Justice.,  made  in  Coun- 
C-.  ,  and  requirni.  o,u>  opinion  upon  the  matters  therein 
re  erred  to  your  Lordship,,  we  have  considered  the  said 
<.nlc>r.    wh.ch  contain,,    in   substance,  that  your   Lord- 
sh.ps  should  consider  what  laws,  now  in  force  in  the 
Inland  ol   Janm„-n,  will  expire  the  1st  of  October,   1724 

and  wh,.t  laws  will  remain  in  force  after  that  time;  and 
hat  your  Lordships  should  also  eonside.  up<,n  what 
.">t    the   government  <,r    (hut    island    will   stand  after 

the  said  1st  of  ()ctober     I7'M    ....  i         i         .  . 

K...n  *i  •  .  "^**'''  ''-^'  '"»'  under  what  circum- 
Umes  the  .nhab.tants  thereof  will  remain,  in  rela- 
;""    t<.    their  .lepen.lenc-e    upon   the    authoritv   of   the 

<  rown  ;  and  that  your  Lordships  would  t.ike  the  opinion 

of   Ills  Majesty's   Attorn..y  and  .S.li.-itor  General  there- 

"1"-   and   ...port  a  full  , state  thereof  t<.   thnr   Excellen- 

<ies  in  (Jcmiu'il 

Au.l  we  humMy  certity   u.ur  Lord.ship..  that  the  hov- 
oral^l-nus  mentioned  in  th.-  said  order,  ,kp..dinK  uih.u 

"  My  o  i^liiii,^,.  in   (!„•.  Miitihv   Apt   C.  »;....    Ml     .• 
",""••'  """':?."'  ''"■■"'"  - -J"  '"■'■'»  in  "..  <^.n.,li"     1 

1  ■»:;;,:  ', ■,""  ■  r'"  '■■"  "■"""'•"  '■»  ■■■"■"  ••"•-• 

WM  uiui  tried,  found  gmln  ,ni,l  (ut  -ut.Mj. 


216 


OPINIONS    OF  EMINENT    LAWYERS. 


ly: 


!{ 


'•I 


I 


the  Constitution  of  the  Island  of  Jamaica,  and  the  sev- 
eral alterations  it  has  .indergone,  since  the  conquest 
thereof  from  the  Crown  of  Spain,  in  the  ye^r  1655,  we 
have  found  it  necessary  to  inquire  into  a  great  variety 
of  facts,  which  could  only  appear  by  the  books  and  me- 
morials preserved  in  your  Lordships'  office  ;  and  in  or- 
der to  our  information  therein,  your  Lordships' Secreta- 
ry did,  at  our  request,  lay  before  us  several  original 
books,  and  cojjies  and  extracts  out  of  other  books  an' 
papers,  hy  the  assistance  whereof  we  have  endeavored 
to  form  some  judgment  upon  the  subject  matter  of  the 
said  leforenoe  ;  but  by  reason  of  the  many  defects  which 
wer(>  in  the  first  settlement  of  this  Colony,  and  the  con- 
t<.'ntions  w  liich  have  ))een  kept  on  foot  ever  hince,  be- 
tween the  respective  Governorn  and  Assemblies  of  the 
people,  we  find  many  things,  of  no  little  conseipienoe, 
left  in  great  uncertjiinty,  at  this  day  ;  and  in  several  in- 
stances, it  is  very  difficult  to  leani  what  was  the  real 
traiisactiou,  by  reaMin  of  the  impertiect  accounts  which 
have  been  sometimes  transmitted  hither. 

'i'he  point.-*  s])ecilied  in  the  said  order  of  the  lat**  Ijord 
.lustiies,  whereupon  your  Lordsbijw  have  beiMi  pleaned 
to  require  our  opinion,  are  three,  viz; 

What  laws,  now  in  force  in  Jamaica,  will  expire  on 
the  1st  day  of  OctoU'r,    1724  7 

\\  lull    liiws  will  renuiiu  in  force  aftn-  that  time  7 

l'|>oii  wbnl  f(M»f  the  governnu'iit  of  tbat  Island  will 
conlitiue,  aft^f  that  time,  particularly  u  relation  u  'An 
dependence  iqxm  the  authority  of  the  Crown  of  Great 
Britain  7 

As  to  the  laws  of  ib«'  Island,  they  .ippear  to  have 
been   niadi'   in  'lill'erent  nuuiuers,  and   under  diilercut 


HOW  FAR  COLONISTS  CAURV  ENGLFSH  LAWS.  217 

powers,  at  several  periods  „f  time ;  and  becau.se  in  con- 
sidering them,  .some  Tacts  will  occur,  which  may  be 
found  to  be  material,  with  rehation  to  the  tiiird  point  re- 
ferred to  us,  we  bog  leave  to  state  the  case,  as  to  this 
head,  more  fully  to  your  Lordships. 

The    first   commission  of  a  (Jovernor  of  this  Island 
which  has  been   laid  before  us,  was  granted  t..  Colonel 
Edward  DOiley,  bc.uin^  date  the  8th  day  of  February 
lObO,  whereby  he  was  ..n.powered  to  do  and  execute  all 
things  appertaining  to  tlw  oHic..  of  Governor,   which 
might  tend  to  the  defence  and   good  governu.ent  of  the 
Island,  according  to  s.uh  powers  as  were  given    him  by 
his  commission  an.l  instructions,  an<l  according   to  such 
good  md  reasonable  custon.s   and  c.mstilutions  as  were 
exercised  and  settled  in  His  Majesty's  other  Plantati.ms 
or  such  as  should,  upon  mature  advic.^  and  consideration' 
be  held   nece^sary  and  proper,  for  the  goo,l  govonm.ent 
an.l  security  of  th-   Wnnd,  provided  they  were  not  re- 
p.'gnant  to  the  laws  of  Englan.l ;  but  no' reservation  is 
made,  or  du-ection  given,  for  I  he  tran.smittu.ir  any  Acts 
<;r  orders,  to  be  made  b;   -.in,   in   the  Island',  to  be  eon- 
hrined  bv  the  Kiu"- 

For  the  better  administrati..n  of  j„sti,-c.  and  manage- 
■  nent  of  ani-  ,  he  wasdirected  to  take  to  bin.  a  Council 
o(  twelve  p  .u.Ls,  tx)  .'onsist  ol  the  Secn-tarv  of  the  Is- 
land, and   elev       .uM>ons   to  be  .h.-Wil  indilferentlv  by 

as  n.any  of  , he  ollicers  o'- the  arnn.  planters,  and  inhabi- 
tants, as  bv  h.s  best  and  most  .-.p.al  contrivance  nnght 
be  .idmitted  then  imto. 

W.th  the  advice  of  thi>Coun,.il,  or  anv  five  of  them 
tb..    (.overnor  wn,«  ...npov  .red    to  erect  and   constitute 
Civd  .lahcature...  w,(b  poucr  toadm.nister  an  oath   and 
to  do  and  execute  all  and  every  .such  fut  Lhor  Act  and 


tt 


III 


n!^ 


'  -  -li 


'm 


u: 


i- 


218 


OPINIONS  OF  EMINENT  LAWYERS. 


fllli^ 


ti-^ 


i? 


rf    'i 


Acts  as  miirlit  conduce  to  the  security  of  the  Island,  and 
the  people  thereof'  and  the  lionor  of  the  Crown. 


By 


al 


virtue  (it  tills  coinmis.'^ion  and  m.-jtructions,  severr 
Courts  of  Justice  were  erected,  and  many  orders  made 
by  the  Governor  and  Council,  the  style  whereof  is,  be  it 
enacted  and  ordained  by  the  Governor  and  Council,  con- 
clndiiifr.  :s\vc:i  under  my  hand  on  such  a  day,  signed  by 
the  Governcr:  and  several  of  them  are  mentioned  to 
have  l)ei'n  proclaimed  in  the  Island. 

Amongst  these  is  an  Act,  or  order,  for  laying  an  im- 
post upon  .strong  li(piors  imported,  viz;  npcm  every  tun 
of  Spanish  or  French  wine,  four  pound.-^  sterling;  every 
gallon  of  brandy,  or  spirits.  six])ence  :  and  every  tun  of 
beer,  twenty  snillings,  and  after  that  rate  for  a  smal- 
ler rpiantity.  I\eiiiedies  :)re  thert'by  provided  for  the 
levying  and  recovering  this  duty,  jind  |)enalties  inflicted 
on  the  persons  committing  frauds  tlicicin. 

Tliere  is  ;dso  another  Act,  or  ordei-.  for  laying  one 
shilling  per  ton  upon  all  >hips  trading  to  this  Island. 

Many  other  ordinances  appear  to  hav<'  been  made  in 
the  same  manner,  for  tlie  better  governinep.t  of  the  Is- 
land, lor  r  'gulating  trade,  and  redressing  pul)lic  mis- 
chiefs; and  some  particular  Ac!s  in  tbo  Harbadoes'  book 
(as  ii  is  tliere  expressed  j  are  ordered  to  be  in  Ibrce  in 
.biniaica 

in  many  of  these  ordinances,  penalties  anil  forfeitures 
t"  til.'  Kii.gar"  inlbcti'd  ;  in>ti<.'s  ot  tin-  peace  are  spo- 
k.'U  of  as  magistrates  then  in  being,  tliough  we  cannot 
find  any  general  roiistihition  of  ju  ticfs  <if  tlic  peace, 
only  an  order  of  tb«' '-'oxcnior  and  Coumil  to  bf  ju  fjct^a 
of  the  peace  tiirougiiout  the  island,  and  someofht-rs  ap- 
pointing particular  ixraons  justices  of  the  jx-'acc. 


HOW  FAR  COLONISTS  CARRY   ENGLISH   LAWS.  219 

On  the  2d  da;- of  July,  1G61,  the  Lord  Windsor  was 
appoii.ted  Governor,  ii  the  room  of  D'Oiley.  By  his 
commission  and  instructions,  power  wasgiven  him  to  ap- 
point and  constitute  a  Council,  to  consist  of  twelve  per- 
sons, hy  the  idvice  of  whom,  or  any  fna  of  them,  he  was 
authori/.i  d  to  erect  Civil  Judicatures,  and  uj  proceed  in 
all  other  acts  of  Council  and  Govcnnucut. 

And  ill  ills  instructions,  to  this  clause,  you  shall  have 
power,  with  the  advice  of  the  Council,  to  call  Assemblies 
together,  a.-cordin- 1„  the  custom  of  our  Plantations,  to 
make  laws.  and.  ujjon  imminent  necessities,  to  levy  mon- 
ies, as  shall  I.e  most  conducihie  t..  the  honor  and  advan- 
tage of  our  Cn.wn.  Mid  the  -ood  au.l  wellare  of  our  sub- 
jojts  :  provided  that  they  be  n..t  repugnant  to  anv  of  our 
laws  of  Kngland,  and  that  such  lawsshaliri.e  in  fi.rcefor 
two  years,  and  n  .  longer,  unless  they  shall  be  approved 
and  confirmed  b\   us. 

This  is  the  fn-st  mention  that  is  made  ..f  an  As.<^em- 
'»Iv;  iHit.  nntwithstanding  that,  it  appears  that  Lord 
Wind.sor,  during  his  .^tay  in  Jamaica,  which  was  but 
■-hurt,  made  three  ordinances,  with  the  advice  of  the 
Coum'il,  as  luurh  in  the  form  of  laws  as  thos.  made  by 
C(»lonel  I) Oilev. 

The  like  was  done  by  Sir  Charles  Littleton,  who  was 
;'|>l>"inte.|  I)eputy-(i..vernor  under  His  Lordship,  and 
"I'Mv  particularly  .'iie  ordinauee,  which  is  entitled,  an 
a<lditi.)nal  ..i  M.pph. mental  .\cl,  t,,an  Act  Linieriy  made 
l>v  the  (i..\eiiior  and  Cnuncil.  for  the  raising  a  public 
rc\.Miu«- <.ui  of  >t-uiui  li(jiiurs  inipMi-t.MJ  t,.  this  Island. 
I5v  tb:  nidinaiir.v  i,n|  only  iieu  nietic  .is  otjcvyingand 
'•oUecla.^  tue  iornicr  duties   are   provide.l,   i.ui   ulau  tho 


m 


I 


Ill 


rH; 


^i 


290 


OPINIONS    OK  EMINKNT  LA»V\KR8. 


duty  of  four  ])oun(I.s  sterliuj:;,  per  tuii,  is  imposed  tipon 
all  Miuleira  and  Fayul  wines,  as  wns,  l)y  the  iornier  Act, 
upon  Spanish  and  French  wines. 

But,  on  the  2:5d  day  of  0,-toher,  1()G3,  Sir  Charles 
Littleton,  with  the  adviee  .if  the  C'onncil.  made  an  order 
for  calling  an  Assemldy.  to  «M)iisist  of  thirty  persons,  he- 
ing  freehohU'rs,  to  he  fiiirly  and  indifferently  chosen  in 
thr*  several  quarters  af  the  Island. 

In  the  same  h(K)k,  in  whi(  h  these  Acts  or  orders  are 
contained,  and  innnediately  following  them,  is  a  trans- 
cript of  a  liody  of  Acts  of  Asseml)ly,  without  any  title, 
save  the  word  Jamaica,  and  tht>  letters  S.  C.  L.  at  the 
top  of  the  first  page,  which  we  apprehend  to  stand  for 
Sir  Chnrles  Littleton  ;  these,  wi'  conceive,  to  he  the  Acts 
of  this  first  Asseinhl,\ . 

Amongst  these  acts  there  is  a  very  romarkahle  one, 
entitled,  'An  Act  (or  cnidiiniing  divers  Acts  of  the 
(u)vernor  and  Council  of  this  1-Iand,  and  repealing  all 
other  Acts  and  ordinances."  in  which  some  particular 
Acts  or  orders,  are  expressly  confirmed  and  ordained  to 
he  of  as  full  force  iis  if  tlicy  hiid  heen  enacted  by  the 
(lovernor  and  Coiuicil.  with  the  consent  of  the  Assem- 
bly ;  nil  other  Acts  ;ind  ordinances  made  by  the  Govern- 
ors and  Councils  oidy  are  declaicd  to  In'  utterly  void. 
But  a  clause  is  inserted  for  imiemnifX  iug  all  officers  and 
other  i)<'r.M)ns  who  acted  nnder  tiuuii,  lor  Acts done  be, 
fore  that  time. 

W«'  have  been  tin-  more  particular  in  stating  tlH»so 
facts,  because  from  them  it  appears,  that  it  was  insisted 
upon  by  the  people  of  i|,(.  Island,  at  that  time,  that  t'.ie 
Arts,  or  oi-diuaiices.  o|'  tlie  natin-e  ot  the  laws,  whicli 
Uad  boea  formcriy  made  by  the  Clovwuorb  nud  Council 


HOW  FAU  COLOMSTa  CARHV   KNGLISH  LAWS.  221 

only,  wore  not  binding  laws,  but  void  in  tbemselvc  for 
want  of  tlH.  ,.c.n,sont  of  the  representatives  of  (ho  peo-ie 
met  in  an  Assembly.  '     ' 

Agreeably  to  this  opinion,  a  new  Act  was  n.nde  for 
estabhslung  Courts  of  Judicature,  and  also  a  new  reve- 
.-e  Act    whereby  duties  w-  .e  laid  upon  strong  liquors 

ported,  varymg  only  in  or.e  or  two  particulars  from 
tiie  former  duties. 

But  though  these  Acts  passed  in  the  Island,  they  d-« 
not  appear  to  have  been  approved  by  King  Charles  the 
Second,  and,  eonse-juently,  could  continue  in  tbrce  only 
tor  two  years.  '' 

The  J5th  day  of  February,  1603,  Sir  Thou.as  Modv-  ^ 
ford  was  appointed  Governor;  by  his  conun=ssion  e'x- 
press  power  was  given  to  him  to  choose  a  Couwci'  of 
twelve  iK-rsons,  and  with  the  advice  of  them,  or  anv 
ive,  or  .nore  of  then.,  t«  n.ake  reasonable  laws,  .-onstitu- 
tions,  and  forms  of  govenunent,  nmgistracy  an.i  execution 

|>f  Justice,  and   t<,  erect  (-ourts  of  .Indicator,.  :  j.rovi,|.d 

he  laws  to  ,.  made   w..re  as  near  ..  .oi.bt  ll.  to  the 
aws  of  England,  and  did   not  extend   .0  take  awav  any 

ngh    of  any  person  in  their   freeh<.l..  good.,  or  ..Ik"  tlel,:. 

or  to  the  loss  of  nu.,nber,  and  so  as  they  were  trans.uit- 

ted  to  ll.s  Ma.)esty  to  1k>  aj)provefl. 

IW  uas  al.,  given  to   the  Cov.rn..,  .i.h  the  ad- 

v-oMheCouncd.  to  establish  and  frau.e  in    och  a  way 

»J  nKuuuM.,  as  sl.,nld  |K>  thought  liMbr  the  .dlin.  of 
.-;nU  Assemblies  of   treeholders  and  p t...  acc:rd- 

«na    int    H,u.i    Assemblies  so   e.tabjished     iVoni 

2''''' ■*"V°  "'"k".  "•■ 1. .,:,„„.,  .,11, 


222 


OPINIONS  OV  EMINENT  LAWYEKS. 


if  ,.^ 


V'     « 


*  ; 
\  r. 


i|  ^t 


tutions,  for  the  good  ot'tlie  said  Island,  the  inhabitants, 
and  government  thereof:  in  tho  niiddng  whereof,  the 
Governor  was  to  have  a  negative  voice,  aiul  also  hv  their 
consent,  upon  eminent  occasions,  to  luv\  money  for  the 
safety  or  good  of  the  puhlie.  Tliese  laws  to  he,  as  near 
as  might  he,  suitable  to  the  laws  of  Kngland.  and  not  to 
extend  to  the  taking  away  rights  of  freehold,  or  loss  of 
member,  and  to  be  in  force  for  the  space  of  two  years,  and 
no  longer,  unless  conlirmed  by  the  King. 

There  is  a  clause  in  these  instructions,  that  wjiat  shall 
be  requisite  for  defraying  of  the  pu])lic  charge  and  ex- 
pense of  the  government,  shall,  with  the  advice  of  the 
Council,  be  laid  upon  hot  Avaters,  strong  drink,  import- 
ed, or  made  and  spent  there. 

It  does  not  appear,  Miat  any  Acts  or  orders,  in  the  na- 
ture of  laws,  were  made  bv  Sir  Thomas  Modvford,  and 
his  Council  ;  but,  in  Kill,  he    held  an  Assembly,  which 
consisted  of  two  representatives,  chn.-on  l)y  each  Parish, 
by   virtue  of  the    Kings  writ   issued  hy  the  Governor, 
by  the  advice  of  tbe  Coi-ncil,  at  which  -everal  bills  pas- 
sed, Imt,  whether  all  oi' them  received  the  rss-ent  of  the 
Governor  is  uncertain,  liccnuse,  to  some  of    them,  his 
consent    is  particularly  subscribed,   and  to  others  not, 
and   amongst   those  which  are  not  so  sidt^cribed,  is  an 
Act,  entitled.    ■  An  Act,  declaring  the  proceedings  of  the 
Assembly,     convened     li\-     the     l)cpnty-Governor,    Sir 
Charles   Littleton,    ludi  iind  von]  in  l.iw.'      Tjie  reas(ms 
given  in  the  preamble  of  that    Act    ,Uf.    Ili.it   disputes 
had  arisen,  touching  the  writ,   wlu-ieby   that    .\-<rnd)ly 
was    chosen,  and    the   manner  of  choosing    them,    mid 
touching  the  validity  of  their  Acts.  In  reason  tlicv  were 
not  signed  by   the    then    Dcputy-Goveinor.  nnr  li\-  the 
speaker  of  the   Aswombly,  and  that  the  substance  of  as 


HOW  KAR  ror.OMPTS  carry  ENGLISH  LAWS.  223 

many  of  them  as  had  been  thought  needful,  were  made 
hiws  by  the  then  present  Assembly. 

Amongst  those  signed  by  the  Governor,  is  one  entitled 
•  An  Act,  declaring  the  laws  of  England  in  force  in  this 
Island,    which  ,s  in  these  words :  )x,  it  declared  by  the 
Governor,  L'otmciL  and  Assembly,  and  bv  the  authority 
of    he  samv   tlat  nil  the  laws  and  .«tatute«  heretofore 
made  m  oiu    n.itive  country,  the  kingdom  of  England 
iorthepubhc  weal  of  the  same,   and  all  the  liberties  ■ 
privileges,  immunities,  and  freedcmis.  contained  therein' 
have   ahvay.    been   of  f  ,n>e,  and  are  belonging  to  His 
Majesty  slicge  people  within  this  Island,  as  their  birth- 
ngh     and  that  the  same  ever  were,  now  are,  and  ever 
.hall  be,  deemed  good  and  ellectual  in  the  law,  and  that 
he  same  shall  be  accepted,  use<l,  and  executed,  within 
this  His  Majesty  s  Island  of  Jamaica,  in  all  points,  and 
at  all  times,  requisite,  according  to  the  tenor,  and  true 
meaning  of  them,  (c>xcept  only  such  statutes,  or  so  much 
of  them,  whereby  any  subsidies,  loans,  aids,  or  other  im- 
positions,  were  granted  or  marie):  provided,   neverthe- 
less, and    It   i.s  hereby  further  declared  and  enacted   bv 
the  authority  aforesaid,  that  the  said  laws  a.d  statutes 
may,  at  any  time  hereafter,  by  the  Governor,  Council 
and  As.sembly,  be  mitigated,  altered,  les.sened,  or  enlarg- 
ed, according  as  the   cmstituti  n  of  this  place  shall  re- 
<l"ne,   and  as  it   shall  .eem  requisite  and  necessary,  to 
the  General  Assembly  then  in  being. 

This  Assembly  a.so  passed  a  revenue   Act,  imposing 

ch.tic.  upon  strong  li.p.ors   iinporte.i,  varying  in  some 

I'ew   particulars,  from    the   furmer   duties,   :,nd    likewise 

aymgaduty  ofone  shilling  per  ton  on  slnps  and  ves.sels 

belonging  to  His  Majesty's  subjecLs  arriving  at  the  Is- 


m 


Jd 


'    ^"^ffi^^^^^l 

im.      ^^ 

^^^1 

/;! 


1  i* 


a 


i 


224 


OPINIONS  OF  EMINENT  LAWYERS. 


land,  and  two  sliilliug.s  per  ton  on  the  sh.^js  and  vessels 
ot'foreitj^JK'rs. 

IJiit  Hus  Act  does  not  appear  to  have  been  subscribed 
by  the  Governor.  | 

The  5th  dav  of  January,  1G70,  Sir  Thomas  Lynch 
wa.s  appointed  Lieutenant-Governor  of  Jamaica,  with 
the  like  powers  and  authorities,  in  case  of  the  absence, 
or  disal)ility  of  Sir  Thomas  Modyford,  the  Governor,  as 
the  Goveinor  himself  had  ;  but  the  clause  in  his  instruc- 
tions, concerning  Assemblies,  and  the  making  of  laws,  is 
this:  you  shall  have  power,  with  the  advice  of  the 
Council,  to  call  Assemblies,  (according  to  the  custom  of 
our  other  riantations,)  to  make  laws,  levy  monies  for 
our  service,  which  said  laws  are  to  be  as  agreeable  to 
the  liiw.>^  ol"  England  as  may  be,  and  .'<hall  Ite  in  force 
for  two  years,  and  no  lo.iger,  unless  they  shall  be  con- 
firmed I)v  us. 

Li  1074,  the  Lord  Vaughan  was  appointed  Governor, 
with  power  to  liuld  Assemblies,  and  pass  la'vs,  to  con- 
tinue for  twd  years,  and  no  longer,  unless  confirmed  bv 
the  King  ;  and  under  him,  three  As.^emblies  were  ho'iu- 
en,  but  ihe  particular  Acts  passed  in  the.se  A.ssemblies 
do  not  appear. 

Hut  tlio  four  Governors  last  mentioned,  being  restrain- 
ed fidiu  passin;;'  laws  to  continue  for  any  longer  time 
than  for  two  yars,  without  the  app.obation  of  the  King, 
and  ntiiic  ol' their  laws  having  received  such  approbation, 
they  are  all  long  since  expired. 

Aftei-  this,  the  Karl  ot  Carlisle  was  appointed  Gover- 
nor, and  by  his  connnissi(m  and  instructions,  he,  and  in 
his  absiiur  lii^  Lieutenant-Governor,  fnrtlie  time  being 
were  emi)('Were  J  iv  uiakQ  laws,  with  the  cuuseut  of  the 


HOW  FAR  COLONISTS  CARRY  ENGLISH  LAWS.  225 

Council  and   Assemblv,   to  continue  in   force  untH  His 
Majesty  ,s  pleasure    slumM  be  .signified  to  the  contrary  • 

w.tl,  ho  co„»e„t  „f  the  Couucil  and  Assembly,  in  th^ 
yt.a,-  lObl,  pa,.,ed  twenty-eight  Act,,  one  whereof  w., 
a  revenue  Act,  wind,  were  transmitted  into  England 
and  l,y  order  oflUs  Majesty,  King  Charle,  the  SecoTd 
".  tonne.l,  dated  the  33d  ,iay  of  Febru  .  .■  1682,  were 
connrnu,!  to  continue  in  force  for  ,even  year,  from  Zl 
l«t  o,  Oct^her,  mi.  A  copy  of  ...  ,.  order,  ™eei  y. 
u^^the  t,tle,  of  the  „au,  Act,  i,  hereunto  annexed' nark- 

Sir  Tlioma,  Lyncli  succeeded  the  Earl  of  Carli        „ 
Governor,  and  had  ,h,.  like  power   t„  make  law,,  with 

force  td  H„  .Majesty',  pleasure  should  l,e  signified  to 
l.c  con  rary,  several  Act,  of  Assembly  having  been 
ran,nutted  byhin,  .  ,  England  for  the  roy'alapprLtion 
tlurteenwhereol(a,no„«st  whicit  „a,a  revenue  Act)„ere 
imT  >;'^7'^''-'-  *c  Second,  in  Council  th" 
l,th  day  ,,1  Apr,l,  im.  ,„.d.  ...ether  with  ,o  ,„ueh  of 
the  Act.s  of    (J82    a.s  were  i  ,    , 

wa.s^^eiti  oy  repealed,  were  or- 

(leied  to  con  Mine  in  tbrofi  I  ,  i  *        r^ 

,,      ,  ,  ,  ""-"iiorcxi  -'"«  twenty  years  from 

.1.C  St  day  or  Novend,er,  10«:,.  A  copy  of  LZ 
.  w. a,  also  the  titles  of  these  last  ntentioned  Acbl 
.^pecihed.  i»  .■nuiexed,  marked  (13  ) 

,V°1';r,-;;'"'' '":'■' '"' '  -"J  '-ntyyear,  expired, 

V..!.  lu   1,03, an  Act  passed  in  the  Assaublv  ,.f  the  i,- 

.ucnt.tle,.  .An  Act  t-or  raising  a  revenue  to  Her 
M.Ue.sty,  her  he,r,.  and  successors,  for  the  support  of  the 
g";er,nn,.ntofthis  island,  and  «,r  main.ainf4  aud  re: 
pa.rn,g  Her  Ma,|e,ty,  ,orts  and  lortification.V'  whic  ■ 
wa,  conhrnted  by  Her  late  Majesty,  in  Uotmeil  the  ITth 


'■;'■{> 


■ 


226 


OriN.ONS   Ol-   K.MINKNT  I.AWVHIiS. 


'^R 1 


^ 


I   ."^ 


\j 


i\\    1)1'  AllUI!- 


rn 


'I'lii--  i<  tlh'  rcvciuii'  Act  now  sub- 


sisting.   ;i!it|     uicirin    IS   all    cxi 


•lausc.  that  iill  the 


li 


I\VS  ol 


Jamaica   coiilirnicil    in   Council,   the    ITtlidavol" 


April,     his 


lor    our     ;iii(|  t\s,'nt',    \'eai"s.  and  noi  \n 


fore 


tlial   lime,  or  liiereKv  i''[ieale(l.  and  al-o   tlial  A<i  should 
eiMitiiiui'  in  i'orce  tor  the  space  ut'oue  and  twentv  ve 


from  lU' 


I>l  da\  .li'O.  I-Imt.  IT": 


_'ars, 


h    1 


i;is    i.rcu    iciiic^eii 


\i'i\  \o  ti<.  Iiy  Ml'.  l'o|>ple,  that 
het  tve  '.'  liie  re--])iHli\  e  peiiods  ol' the  eontimuince  otthe 
two  la-t  Me.ttioned  bodies  (.facts,  j'.nd  al^o  since  the  lust 
eonlirmal  iou.  :c\('ra.l  jKirticiiiai-  .\it  of  Assendlv  iia\  c 
passed,  w  lii'h  aiv  pijrpetii.d  in  Ihcir  nature,  aud  hax'e 
been  L;'euciall\  (■outirnied  by  ih.'  t'rowu,  witjiniil  rela- 
tion to  I  lie  otluT  hiws. 

.Ml  llie-i-  Aids  (except  the  fe\u'l:i-t;  are  contaiucd  in 
(lie  piiuled  eolk'ctions  of  the  laws  ci  Jamaica,  aiul  a 
s'diedide    of  the    titles   of  theui    is    iicrc  unto  annexed, 


iiiaiKcij 


(<■) 


It  ha-  iiccii  ii'pic-cii.  (I  o  U' ,  li\  .Mr  l'o|ipU'.  that 
th»  are  nine  acts  of  Ak^'OIiiIiIv  .  |ni|i(tiial  in  the  frame 
ol'tlicm  \*!iiiii  hive  boon  trai'Mi, lilt  d  hither  at  s»'\enil 
time-  hit  \wen  the  year  17I-.  aud  ilieyear  IT'-'"',  u  hitdi 
iia\c  :iut  hitherto  been  I'ither  appiovevl  or  di-allo\ved 
by  the  Crown,  so  that  thc>e  ha\c>.  a',  present,  the  force 
of  laws  in  the  island.  A  s(die(lnle  of  tin-  titles  liier«'of 
is  lierinnito  anne.xed.  marked  (D.) 


Kii'iii    this  a'eount  of  the  laws  of  .Fiiniaiea,   wi,i(| 


I    IS 


the  be-t  ue  have  been  able  '•  rolleet,  we  arc  ol  upniion, 
that  all  ;he  nets  of  As^i'liil  '  -  HjM'ei.ied,  and  cMiilirmed, 
,n  till'  vN.i  ortlers  of  ('unneil.  of  tlie  1st  t»f  Octolur.  ItlS'J, 
and  the  ITtli  April,  IliSl.  will  delerniinc  with  the  reve- 
nue nc  I.  on  the  \*t  day  of  Oeto'icr  next  iiuiniii't  thc'^e 
U  thuuul}  law  uow  in  b^ii)g,lurap|)oiiitiKgitiiil  cnt  •bliuh- 


HOW  FAR  rnr.OMsTS  C.\nn\  FNCLISH  I, 


\W: 


OO- 


!M,ir  their  A>  ■■iiiMv;  an  art  for  M'ttlm^^tli,'  militia;  an 
ii.'t  tor  <'stalili<!iiim-  Cdurts.  ami  ;1mv<  lino-  \\,r  iiiar>Iiar.s 
|)i(.rc.'(lin-~.\\l,icl,  ri'iiiilato^  tlie  course  ol'lc-al  pro.H-rd- 
"'."'''•  ■•'"  i"'f  '"'■  :i-^i'<'rtaiiiiii-:  til.' .|iiit  rciit^.  and  tlie 
MiaPiui'  of  icccipt  lli'ivol';  and  .-evc-ral  oilier  ad^  of 
ivreai  .■on-eiiiie,,,.,.  (.,  (h,.  government.aiid  Widtiiri-  of  the 
colony. 

It  ha-^  IV, t  appcrcd  to  ns.  that  any  aotH  made  anteee- 
denf  t.)  those  of  lt)S2,d.)  now  continue  in  force,  or  can 
revive    iiptm  tli.'ii- determination. 

The  jiri:  uil  eolieetion  of  the  laws  of  tliis  islanl.  l)e- 
.iiins  with  those  of  |(;.S2,  and  takes  no  notie(«  of  Mnylhin- 
"""■''  '111  •i''"t  ;  and  it  appears  hy  what  has  lie.-n  .ahead v 
"'"''■''■  I'l'i'  -il  tl'o  (Joveniors  hef.-.re  that  lime.  {<\rr^A 
("wlni;,.l  DOiley,  wl»o  was  appointed  in  ICiKi.)  were  re- 
.-•traine.l  t.,  mak,.  la w.<_ to  oonti"nr,  any  hnij^er  linn  'wo 
year-.  'I'herefore.  if  an\-  precedent hvw.-(  can  lir  pieh  nd- 
'''^  '"  '"■  1  I'"''''  "!•  'Miiahle  of  t»e''Mjr  revived,  they 
'iii>l  have  I,,-,., I  ni.uie  In  hiiu.  JJnf  jf  .s,vni.s  U>  ii.-  very 
«ic  il«tliil  up Mn  his  o<mnnission  and  iiiMtriictjons.  wh>  .her 
It  \va>  the  iiiieiii!..,!  of  111, ■  (Vown  to  jrjve  him  a  general 
I'ow.'i-  ofni.alvMi-  perpetual  law-,  or  oidy  ordiiianees  aial 
!cmil,itioii-  i;,i  thr  presei  admini.-tration  of  the  i;overn- 
'ii'iii:  and  uv  the  rathe,  inelin'.-  to  think  the  hitter,  he- 
-au-e  il...  u,,id  law  is  no  wh.>:-e  mentioned  in  th.- an- 
'liorific-^  uiveii  to  him,  and  then  i^:  no  reserv.ition  of 
|".\v.  r  t  .  the  Crown  to  anprtr-e  oiMjjsaMow  the  eonstitn- 
iions  he  sliould  make,  whivdi  eo  dd  hirdiv  have  In'en 
"""tird    if   it  had  heen  iniended  th  honld  make 

periHauftI  laws  Besides  this,  it  is  to  lieoh.erved,  (h.it  hit 
aets  wore  mad<^  hy  thy  Oov^.rnor  h.mI  Comirii.  without 
any  As^.mhly  of  t||^pe..|de.  and  tii.ai-.rh  that  Conncil 
w.i«   (lirteted  to  ht>  indifVerentlv  eU'etwl  hv  an   mam  of 


j<. 


C^ 


:  <v 


ST-    * 


U 


228 


OPINIONS   OF  EMINENT  LAWYERS. 


the  officers  of  the  ariny,  planter^.  .mikI  inhiibitfuits,  as  Ity 
the  Governor's  best  and  most  t'(iiial  contrivance  niij^ht 
be  admitted  therennto,  and  in  that  rcs])cct  mi<;ht  be  a 
kind  of  representation  of  tbe  people. yet  how  tliat  power 
was  execnted,  does  not  appear;  'ind  in  fact  the  very 
first  Assembly,  whidi  was  held  in  the  year  Idd'l  made 
an  act  declarinjj;  all  the  aet^  made  by  the  (Governor  and 
Council  (except  such  as  \\v\v  particnlaily  confn-med  by 
them)nulland  void,  aiidadded  a  clauseto  iiidenniity ])er- 
sons  for  havin^f  acted  under  them,  aii(i  thou,i;h,  by  the 
very  next  Assemble  the  acts  of  the  (irst  .\ssend)l\  were 
declared  void,  yet  one  o|'  the  icasons  liiven  is,  that  as 
many  of  them  as  were  neeijfid,  had  lieen  re-eiiacted  bv 
that  second  .Vss'Mubly.  some  of  which  acts  sore-enai-ted. 
are  to  the  same  ell'ect  with  srvfinl  ,il'  1)"(  )il(>\"s  ,.d> 
nances. 

As  there  aic  thu^e  ddiibt^  cimrernini:  those  acts  or 
ordinances  in  their  oii<:iual.aiid  no  cMmph'te  siilimisMon 
ever  yielded  to  them  by  the  people,  xi  it  iloth  not  ap- 
pear to  us  that  an\  of  them  have  been  acted  under,  or 
put  in  practice  since  the  year  ItiC:;.  bnt  the  entries  in 
the  books  in  your  i^oidships'  ..lliic.  i\,,  in  ,)\w  ajipi-eheu- 
sion,  impori  the  contraiy  And  lor  thoi'  rea>oiis,  we 
ai-e  of  ojiinion  that  tlie\  i  annul  jinw  be  considered  ua 
snbsi.stinir  la\\>,  or    pnt  in  exi'cniinn 

.\-  to  such  acts  111'  A>-emb|\  ii-  ii;i\  .■  Ini'n  made  >int  • 
ihe  \e,ii-  KIM',  pei|ietnal  in  their  naliirr,  and  cimlirnied 
^eiierali\     b\     the    Crown,     \\hirh    are    H|„.rilicd     in  the 

schedule  marked  (('.),  wr   .,|ipr.lirnd    th.'\   will  iliinie 

in  full  force  after  the  expiration  III  !  he  r.'Mnui  act  and 
H>  will  also  those  olhei  art-,  uol  \v.l  appi.iviil  nr  disal- 
lowed nil  ii(!(»iieil  in  w|HMlul«'(n.^  until  His  Majesty 
nli.iU  be  pha.-id  I.,  declare  hisdisulluwunce  of  thoiii,  uud 


HOW  FAR  COLONISTS   C  ARKV   B:NGLTSH  LAWS.  229 

then  they  will  cease.  These  are  the  only  acts  of  As- 
semhh-  of  the  island  whieh,  so  laras  we  have  been  able 
to  be  infornied.  will  remain  in  force  after  the  1st  day 
of  October.  171^4. 

8nch  acts  of  Parliament  as  have  been  made  in  Eng- 
land, to  bind  tlie  Plantations  in  general,  Jamaica  in  pa-- 
ticnlar,  and  al.so  snch  parts  of  the  conniion.  cr  statute 
law  of  England  as  have,  by  long  nsagr.  ;iiid  general  ac- 
.piiesci'nce,  been  received  and  acted  under  there,  thouirh 
without  any  particula:- law  of  the  country  for  that  pur- 
jH.sc,  .vill  (as  we  luunbly  conceive)  cnutiiiue  ..f  the  same 
force  after  the  lirst  day  of  October  next  as  they  were 
betbre. 

Hut  we  must  observe  to  your  Lordshl-.s.  that  we  ap- 
].rehend  tlieiv  nmy  be  great  ditliculties  in  putting  such 
hiws  as  wdl  edutinue  in  force,  in  execution  alter  that 
time;  becauM',  though  tb-  ( 'ourl^  of  diidicature  which 
have  I.een  er.rti'd  by  the  Oovernor  an.l(,Mmcil.  from 
time  to  tnue,  by  authority  from  the  Crown,  will  remain 
'"  ''i''  '^':if''  ""•;>■  n(.w  are,  yet  pi-vticidar  I'egulations 
and  kinds  c,f  process  and  Ibrms  of  proeeei|inu-,  lia\  ni"- 
l)een  institute.l  by  Act-  of  As.-embiy  wloch  ^\  ill  expire, 
it  will  I.e  ditlicnit  tbi-  tile  . bulges  to  know  b\  what  i  nles 
ti  p  pl'oc ced, 

'I'll.  ne\t  -eiieral  (piesfiun  upon  whlcli  \,,ur  l,ord- 
Hhips  are  plea-ed  to  iv(|uire  .  ar  opini<.n  is  l'p,,n  what 
fool  the  L;o\,anmeiil  of.lauMiea  will  continue,  aftei'  the 
fu-t  o|  (>c|..Imi-  iir\l.  paitK  idarl\  iu  relation  to  it  -  de- 
l"'i"l'''i''''  iij  '"  ""'  :i'iflioiil\  ..f  (lie  ('.-,, wn  ..|-  (iivat 
P>nlanr 

.\-  i"  this  jioint,  we-  apprelu'iid  that  the  evpiration  of 
the  Law.-  before  mentioned,  will  not.  in  geiieiak  weaken 
or  take  from  the  iie|M.ndence  ...  thi,^  l.lau.l  lipon  (he 
«  riiwu  ot  (.real   Unluin. 


230 


OPINIONS    OF    KMIXF.NT    LAWYERS. 


'km 


--/ 


Tl 


le 


powers  <riv('ii   by  His  M.iicstv's  ooiiimis.iion  find 


instnictioiis  to  tliis  liovcniiiu'nt,    or  \\\o  ( 


>o\  (^ruoi-  'UK 


Council,  will  reiiiiiiii  ms  tl 


Ul! 


icy  iire  now,  uiilc-s  juiy  piu-tic- 


ir  pai'ts  of  tlu'iii    rclati'  to    the   piittini;'   in  oxcc-iit 


ion 


Acts  of  Asseiniilv  which  will  tl 


ICIl   CXI)'    c 


His    Miij(>^t\-   urn-    iil-o,  under   His  (iixNit   Si'til. 


Civc 


^<uch  further  powers  to  his  Governor,  t 
liiin  alone,   or  with  the  iuh 


I)  oi'  exercised  hv 


Ofi 


\  ICC  ol  a  (  (Miiicil.  (tlic  power 
ppointini:  which  will  still  i-ciiiain  in  Ili^  M;ijcst\-.)  as 
shall  })o  found  necessary  fur  piittin^r  in  cxccntidii  the 
laws  which  rt'inain  in  f.irce;  and  aNo  for  annointin<>- 
jndtres  and  otiit  ers.  and  adinini'^leriM.i:-  Jii-licc  in  hi.s 
(  .iirts  :     for  orderiiii;-   t'lc   militia;    and   doinu-  all   oth<'r 


acts  which  lielon.Li'  to  His  .\hije    \  to  do,   l)\  1 
live.       And   in  le^ial 


his  prero^M- 
pidcecdinL^s.  an    apiieal   will   lie  to 


His  Majcst\   in  Coiiiicil.    in  tl 


ic   vaiiic   manner  a-  it  does 


now. 


The  cliicf  dilliciiltic^  with  icuard  to  u;ovcrnnieiit,  will 
arise  unch'r  the  head  of  the  rc\eiiiie  to  the  down,  and 
the  power  of  niakiim  ii 


ew   \i\\\ 


As  t  I  the  rcNcmic.   it  iU.us   not    apncar  to  us  that   anv 


will  sui.-ist.  alter  I  lie  del 


ermiiial  ion  oi'  l  he  pi  eseiit  rc\ c 


nue  act.   Iic.>ide.-    liie   u'lil-   rc>er\ed    wpoii   the  -rant-  of 


land 


S,     IICCIK'CS   to 


f  sellini:   ^tioni;-  liijiiois    and  tl 


IC  casiia ! 


rovemic  of  lines,  forfeitures  and  e-.  Ilcat^ 


ill  the  reco\ 


cry  whereol'  thci.'  ma\    he  also  some  dillicullie-.  li\   rea- 
son of  the  expiration  of  llie  laws  tjireeiiii^-  the  inelhods 


of  proceedings  now  in  ii^ 


.\: 


o   the  jiowcr  of  rai^-in;^ 


any  new   re\eni;c  tor  the  >ii|i|iort  of  ijoveniiiienl.  I>\    1 


i\ 


ini^  new   ta  \es  oi'  inino-itioi 


IS     llliiin    III.'    peuplc 


it     Wll 


de|M'nd  upon    the  <pie*lioii     wlieih.'r   .l.iinaiiM  is    now  to 
he  lonsideied   Ilierel\  a  colony  of    KiiL:li-ll   -llhieet-.  or 

Hs  a  conipiereil  enuiiti\   ,     if,  wc  a| 

oi     Liiyu.-il     r'UIijiii-,    iiie\      IMllllol      IM'     1  a  \  e<  i .     jiut    l)V     till! 


ipieiieiid.  ii,s  a  colony 


now  KAU  (OI.OMSTS  CARRY  l;^^.LISH  LAWS.  231 

ParliaiiKMit  of  (iioat  Brituin,  or  l.y  and  with  the  consent 
of  some  reuresent.'itive  body  of  the  people  of  the  island, 
I)roperly  ussenil.led  hy  tlie  authority  of  the  Crown;  but,' 
if  it  ean  now  he  coiLsdered  as  a,  con.iuered  country,  in 
that  case,  we  conceive,  they  may  1...  taxed  hj  the  au- 
thority of' the  Crown. 

As  t  .  the  fact  upon  which  this  question  (which  is  of 
great  wei-ht  and  i    q.ortancc.)  doth  arise,  we  apprehend 
sulhcient  materials  have  not  been  laid  before  us  to  enable 
us  to  jud-e  thereof  for  whi.l,  rca.^on  we  have  offered  our 
"!»■'!'    ">  toyourLord.ships,  upon  a  supposition  that  it  may 
•  •onie  out  <  iili,  r  way  ;     u.t.   if  it  should  appear  that  this 
island  can   now  oidy  be   considered  as  a  colony  of  Eng- 
lish subject^,  y,.t   we  are  clearly  of  opinion,  that  since 
tlu-  present   Act   of   Assembly  of    |tiS2,  api)ointinjr  the 
iH'iuber  of  meml)ers  of  the    .\.s«^embly    ami    the    plac.M 
liom  whence    thc.\    are    to  comr.  will  expire  with  the 
revenue  art,    (m    the   lirst   day    .f<K'tober   urvt,   it   will 
after   that   time,     be   in    Ihf   power  of  His    Majesty,    hy 
his  commis.sion  and  instructions  to  his  (Jovernor,    to  ap- 
point  A.-M'uiblies.   f.  br  sumuK.ued   in  such  manner  as 
His  Majesty  shall  think  lit,  b.  Mi  as  to  the  munber  of  the 
wlmlc,    the  iMiiuberof  rrpivsentat iv.-s   to  be  elected  for 
i'articidar  pla.v.s  and  parts  ■,(  Ww  i.lan.l,  ami  the  quali- 
lirations,  both  of  the  elect. .is  and  the  ele.ded  ;   provided 
such  ..rd.-raiid  mcth.-l  be  ..brrved  then-iu  .as  that   they 
Ix-   ivas.u.ably   uwU-v^tnnd   to   br  a  nprrM-ntation  of  the 

|l('ll[llc. 

This  power  was  <.x,.rcisrd  by  ||i<  MaJ.-sty's  pr.'doces- 
sur.s,  beforr  that  art  ul  KiS-  p;,...,,i  ;„„|  ■..o„,.,,,„'ntly 
v-iH  n.nain  .titnr  i..  the  Crown,  atlrr  it  shall  exj)ire  ; 
••'lid  such  a>semblios,  .so  summoned^   will   have  the  same 


H:| 


I      t 


HI 


& 


OPINIONS  OF  EMINENT  LAWYERfl. 


authorities  to  make  laws  and  rai>se  money,  as  the  pre- 
sent or  any  other  Assenihly  have  been  possessed  of. 

P.  YORKE. 

May  18,  172i.  C.  Wearg. 

(8.)  7//r'  opinio),.'^  oj  Northtij,  lii/der  and  StnDuje,  on 
the  (lUroiidiniaiue  of  the  American  Art  of  Queen  Anne- 

[Copy  of  the  opini(jn  of  the  hite  Sir  Edward  Northey, 
Ilis  Majesty's  xVttoniey-CJeneral,  in  rehition  to  the 
American  Act,  dated  the  KHli  of  February,  171o-l().] 

I  am  of  opinion,  that  the  whole  American  Act  was 
intended,  and  appears  to  have  been  intended,  only  for 
tile  war. 

'  Ya->\\.  Northf.v. 

[Copy  '  !'  <h<'  joint  opinion  of  Sir  Dudley  Ryder,  Attor- 
ney, and  Sir  John  Stran^a-.  Solicitor-rfeneral.  in  rela- 
tion to  till'  American  Act,  dated  the  17th  .luly,  1740] 
^\e  have  perused  the  several  c-jau.ses  in  the  American 

Ai't.  and  by  nparin-  the  several  clauses  together,  it 

seems  to  us.  that  the  Act  is  not  now  in  force,  but  expired 

at  the  end  of  the  tiien  war. 

Dl  DI.KV    I{V|)EH. 

.Tidy  17^  I7in  J^,„.^,  Stk.\.\(;k. 


_i:_   


Of  the  Colonial  Cou^fitutioiis. 


IV.  Of  the  colonial  constitutions,  wiii*  h  w^iv  various- 
ly modified:  First,  Of  the  Covonior.  who  .leiivcs  his 
power  from  the  King's  commission,  under  th"  orcat  seal, 
and  his  rules  of  conduct  from  the  Kin-'s  instructions, 
under  the  sign  manual ;  SccoixL  i)(  the  Kin-s  Colonial 
Councils,  who  derive  their  autliority,  h'-ih  executive 
and  legislative,  from  the  Kiu-'s  in.tru.'tions  to  the  fiov- 
ernor;  2hir<l,  Of  tiie  ]u'in\.s<  ittjr-irr  As^'iiiMie^.  who 
were  chosen  by  ceitain  el 


isses    o|     I  hi'   (• 


Tl 


lere  is  on  this  to 


'lonial  j)eo])le. 
)[)ic   much  (;oni[)licatiou  :    the   ri"hl  of 


grunting  a  representative  M>,.  inl.lv.   at    what   tin 


ic.   and 


under  what  cireumstancLS,  he!( 


'n,i;cd    to    the  Kini:.  -nh 


jcet    to    after  regulation   hy   the   I- 


''■III   I-'-ir-L.tm 


Ih 


eolonists  carried  with  tl 


leni  ihe  liihil 


lUK  Ilia!  n-.it  oi  nei- 


ther heing  taxed,  nor   ruled,  hnt  wiih  Ih 
given   either  direetlv.  or   viilnallv. 


■I I"  "\vu  a.^.Hiit, 


Fir><t,    Of  the  Gtnein 


or 


(1.)    Ste  the  opiuioH  ,»'   t},r  Attmnnj-Oeneral  Bh 


Hl( 


III.  <if  Ih'rhii.li 


fu- 


ll    \t 


21). 


His  Majesty's  Attornev-Geueial  I'l 


>V  till,     isl, 


mil      1; 


(U- 


de- 


Ol 


234 


OPINIONS  OP  EMINENT  LAWYERS. 


ii  !,^ 


Ml 


sired  to  give  a  full  and  explicit  answer  to  the  following 
quofrei  viz. 

Quare. — Whether,  notwitl.i standing  the  King's  second 
proclamation  for  continuing  all  officers  in  their  respect- 
ive posts  after  six  months  from  the  demise  of  the  late 
King,  the  act  for  supporting  the  honor  and  dignity  of 
the  government  did  not  determine,  and  the  salary  of 
£G000  jH-r  aiuaim,  therel)y  provided  for  the  Governor, 
ceased  to  be  due,  by  reason  that  his  new  commission 
was  not  obtained  before  the  six  months  elapsed  1  And, 
whether  the  gentlemen  of  the  vestry  for  St.  Michael's 
parish  are  obliged,  or  may  refuse,  to  lay  the  tax  this 
year,  as  they  have  usually  done,  in  pursuance  of  the 
said  law  ;  or  what  will  be  proper  for  them  to  do  in  this 
case  :  divers  of  them  being  apprehensive  that  if  they  lay 
the  tax  they  do  thereby  allow  the  act  to  be  in  force,  and 
they  will  be  afterwards  boimd  by  it,  although  they  are 
of  opinion   the  said  law  is  in  fact  determined  1 

It  has  been  generally  held,  that  at  oonnnon  law,  all 
patent**  determined  Ity  the  death  of  the  King  by  whom 
they  were  granted;  and  it  is  observaJ>!'\  that,  on  the 
death  of  King  James  the  First,  the  judges  tliought  it  saf- 
est not  t<.  act  till  their  jxitents  were  reneweil,  although 
there  had  bt-en  a  proclamation  for  contiiuiing  them  in 
their  several  offices  as  betbre;  the  reason  (»f  which  opin- 
ion so  far  prevailed,  that  even  on  the  alMliciition  oi'  King 
JnnieH  the  Second,  many  la'.VMis  held  that  tl  <•  judges' 
commissiims  determined,  from  the  time  of  tin  King's 
withdrawing.  However,  by  the  stat.  7  nud  H  W.  '.i, 
whiv'h  was  explained  by  a  sul)sequent  stat.  of  1  Queen 
Anne,  ch.  8,  all  oommissit)ns  of  patents  are  iimdc  to  onn- 
tijuie  for  six  months  after  the  demise  of  the  King,  unless 
superseded,  in  Ihc  meau  tinyj,  by  the  successor.      Now 


OP   THB  COLONIAL  CONSTITUTIONS.  25§ 

the  Governor,  holding  his  place  by  virtue  of  a  commis- 
sion from  the  late  King,  and  that  not  having  been  re- 
newed  by  hi«  present  Majesty  till  after  the  six  months 
were  elapsed,  it  would  seem  just  enough  (taking  it  i^ 
tins  light)  to  infer,  that  his  excellency  ceased  to  be  Gov- 
ernor  at  the  expiration  of  the  six  months ;  and  conse- 
quent ly  that  the  act  was  no  longer  in  force,  tl,e  same 
being  hnuted  to  continue  only  so  long  as  Mr.   Worsley 
should  continue  to  be  His  Majesty's  Captaia-Genera^ 
and  Guvernor-in-chief,  and  in  that  quality  personally  re- 
«ide  HI    the  island.      But,   I  apprelu^nd,  that  this  case 
w.U  tuni  up(.n  its  own  particular  circumstances,  and  the 
reasonable  construction   which  is  to  be  made  of  the  act 
for  settling  the  £6000  per   annum,  abstracted  from  any 
regard   to   the   commission,    which   is   not  mentioned 
in  it. 

I  take  it  then  to  be  clear,  that  the  intention  of  the 
law  was  to  make  a  suitable  provision  for  His  ExceUen- 
cy,  as  long  as  he  should  continue  in  the  government  •  for 
to  contnme  His  Majesty's  Captain-General,  is  undoubt- 
edly  the  same  as   if  the  words  had  been,   to  continue 
the  King's  Captain-General;    and  since  the  King  in  a 
egal  underst^mding,  never  dies,  it   seems  to  me',  that 
those  words  do  not  confine  such  provision  for  the  Gover- 
nor   to  the  then   reign  only,  but  that  they  take  in  the 
whole  tm.e  of  his  residence  here    as  chief  magistrate 
which  C(mstruction,  I  think,  is  plainlv  indicated  by  the 
preamble  to  theact.  Now  itis  certain  that  Mr.  Worsley 
has  continued   pers(,nally  U>  reside  m  this  iskiid  ev^ 
muce  h,s  first  arrival  in  the  (luality  c^"  Capt^in-G^wi 
iic.,  and  thrt  he  hathduriog  that  t*u»e  oxoreisod  all  eoti 
ot   govenm.ent,   in  every  ros,K.ct.  without  interruption  " 
Whcruis,  ,f  tUc  royal    prochuiiiinan    wo-  n-*    ^r^m^-^ 


IP 


I 


2S6 


OPIXIOXS  OF  EMT? 


LAWYERS. 


(luTo.  ill  one  of  the  King's  colonies)  to  continue  his  Ex- 
oelli'iicy  in  his  uovorinnont  from  tlie  end  of  the  six 
month-;  to  ilic  date  oi"  tlio  now  commission,  I  conceive 
all  surli  iicts  (if  his.  (luring  that  interval,  as  well  as  those 
of  snbordinato  niiigistratos  and  judges,  were  absolutely 
void.  a:id  thcii.'  Avould  have  1  en  a  total  discontinuance 
of  all  process  and  causes,  hotli  civil  an:l  criminal, 
throiighniit  the  ishind.  which  Avould  introduce  the  ut- 
most ei>!it'iision,  ill  point  of  ])roperty,  and  occasion  other 
inc  luvetiieiices  of  the  most  dangerous  tendency.  If, 
then.  t!ie  -ecoiid  proclamation  did  effectually  prevent 
tiiese  fatal  consequences,  which  thenature  and  necessity 
of  the  tiling,  as  well  as  the  general  practice  of  all  in 
authority  at  that  time  (and  perhaps  of  many  who  now 
start  the  olijcction.)  doth  evince,  it  must  be  allowed 
Ih.il  Mr.  ^V(ll■-;^■y  continued  His  Majesty's  Captain-Gen- 
eral, aii  IC  \  cii!  ir-iii-(diief  of  this  island,  witliout  inter- 
mission; and  I'r  nil  tlience  it  will  as  strongly  follow, 
tlint  the  act  i'or  Mipiim  ting  tiie  honor  and  dignity  of  the 
govi-riiMi  iif  i >  Hot  ileterinined,  But  admitting  there 
wi'iv  any  (hmi'l  ol'  tiiis  matter,  1  slumld  think  it  the 
safest  way,  fr  su(di  as  are  concerned  in  a  public  capaci- 
ty, to  (lo  \sliat  is  rc([uired  of  them  by  the  act,  since  it 
halh  n  >t  \tt  lircu  (h'claicd  \()id  l)y  a  ecmipetent  author- 
ity ;  bu(.  oi!  tlic  contiai-y,  it  is  manifest  from  the  Gov- 
ernor's 1),  \  in-ifuctions  on  this  head,  that  it  is  taken 
lo  l;c  -tin  III  loree,  hy  the  same  sovereign  power  which 
confirin  oi'  lepcils  ail  hiws  made  in  this  place.  And  as 
tip  |i(rtoniiii,L'.  the  '.iities  required  by  the  act  will  avoid 
the  I'l  nalties  otlierwise  to  he  incurred,  so  it  will  at  the 
-ante  t'wnr  !"ave  every  one  at  liberty  to  try,  if  he  pleas- 
es, the  vafMiity  of  it.  in  the  courts  of  law.  Upon  the 
whole,  I  am  oi  upiulou  that  it  will  be  most  advisable  for 


OF  THE  COLONIAL  CONSTITUTIONS.  237 

the  gentlemen  of  the  vestry  to  proceed  a„,l  apporticni  the 
tax  in  hke manner  as  they  have  hithertodone  ,  hutth.-v 
may,  however,  for  the  satisfaction  of  such  as  are  dubiou^ 
make  a  minute  in  their  parish  books,  rc^ervini;- to  them- 
selves all  benefit  and  advantage  of  oxeci.ti..,,.  in  cshc  the 
low  should  be  deemed  not  in  force,  which,  I  conceive 
will  be  sufficient  to  put  the  gentlemen  of  the  vestrv  up- 
on equal  foot  with  other  persons   in  this   respect   whiNt 
It   prudently  leaves,  at  the  same  time,  the  point  in  dis- 
pute to  be  determined  by  the  proper  judicature. 

April  10,  17:^9.  '^^  ^^•==^^-^'^^^- 

(2.)    Ihe  opinion  of  Mr.   Ihomas  Reeve,  on  the  mine 
sithitct,  1727-8. 

I  am  of  opinion,  that  this    act    is  not  determined  by 
the  demise  of  His  Majesty,   King  George,   but  will    re- 
main-in force,  as  long  as  Mr.  Worsley  continues  (lover- 
nor  of  Barbadoes.  and   shall  personally  reside  in  the  Is- 
land.     It   is  observable,  that  the  tax,  &c.,  is  granted  to 
His  Majesty,  his  heirs,  and  succes.sors,  during  the  con- 
tmuanceoftlieact  :    it  is  limited  to  contimu',  iWr  s..  long 
time  as  Mr.  Wursley  shall  continue    to  be  llts  Majesty's 
Captain-General,  &c.     Yet,  I  conceive,  these  words  wJH 
ha    'the  same  con  .tiuction,  as  if  it  had  been  limited  to 
continue  so  long  as  Mr.  Worsley  should   be  tlie  King's 
Captain-General;  and  as  the  King,  in  law.  never  dies" I 
conceive  the  demise  of  King  George  the  First  will  not 
be  a  determination  of  this  act. 

Tuos.  Eeeve. 
Jan.  15,  1727. 


288 


OPINIONS  OF  EMINENT  LAWYERS. 


Thih  act  Ls  to  contiiiHo  no  loijjijer  than  Mr.  Worsley 
shall  continue  Governor,  and  be  p'^rnonally  resident  on 
the  island:  ii'he  once  ceases  to  be  Governor,  thoi'jrr  '. 
hath  afterwards  a  n.w  connnission  granted  him,  I  co»^ 
ceive  the  act  is  dete.iiiiaed.  By  the  statut*^  ol  (j^-. 
Anne,  the  connnissions  ol'  the  Governors  or  tht-  planta- 
tions are  contiinunl,  for  six  months  after  the  demise  ■" 
the  Queen,  or  her  successors,  and  if  a  new  commiiwion 
was  granted  to  Mr.  Worsley  Avithin  the  six  months  af- 
ter  his  late  Maje.'^ty's  demise,  it  may  be  a  oontinuanee 
of  him  as  Governor  witliin  the  intention  of  the  act, 
though  I  think  this  point  is  something  doubtful ;  but 
if  the  six  nionths  expired,  and  then  a  new  commission 
was  granted,  it  seems  to  me  that  the  act  is  determin- 
ed. 


Thos.  Reeve. 


Feb.  1, 1728. 


(3.)  Mr.  ireiY'-y  opinion,  hi  1725,  ivhether  a  Governor 
can  vote  a-s  a  Cot(/uillor. 

To  the  Right  Hon.,  the  Lords  Commissioners  for  Trade 

and  Plantations. 
My  Lords  ; 

In  obedience  to  your  Loidsln'ps'  comn  nds,  signified 
to  me  by  letter  from  Mr.  Poppe  dated  the  24th  day  of 
November  last.  I  l.-ive  ronsidei^ii  .ii  following  qtttpre, 
Whether  a  Goveni'M'  <■  ;i  vote,  as  a  Councillor,  in  the 
pa.ssing  of  bills,  wlie.i  tlie  Miii'ii  hIs  in  their  legislative 
capacity  / 

Upon  consideration  of  which,  and  of  the  Governor's 
commission,  and  instructions,  I  am  ofojiinion  thata  Gov- 
ernor cauiiot,  by  law,  vote  as  a  Councillor  in  the  pabsing 


OF  THE  COLONIAL  CONSTITUTIONS. 

<^^  WI1«,  When  the  council  «its  in  their  legislative 


Jan.  8,  1724-5. 


239 
capac- 

RicH.  West. 


(*.)  Jfr.   He^t'^  opinio))  y«   irio  ^ 

ijfi/nvn  1)1  1 1  lif,  concern ivo  ri  nr»i^ 

^ Tml^'^i'p,"™'""'""  "'"  '^"■■''■'  ^^o„,mi,„i„„er,  for 
Irade  and  Plantation.s. 

My   Lord.s; 

ment or  proroL'ation  miv  fw>  r,  ,  'ifljoum- 

in?  accm-din.V       ■.      ■    ^^  P''"'-"^^^'^'^  without  a  meet- 

Ln  Ta    ?^r       '"^    1--— ■^acljourniHeP.t,  orpn^ro^a- 

But  an  I  beheve  so  g.uen.l  an  answer  to  the  cmestion 

JlliTeT'f  r'"'  "T' '""  "><■««.->»- 

"wnones    ot  the  several  provinces    in  tho  Wo.f  t  ^- 

leant  .«  ext^-nsive  as  it  over         i  "7''"^^''^^  '^^  --t 

♦«  ,.  •'■  '^^^**' "■'•^inKnghui.  .     In  ro«iDet>t 

The  iH-ero-ativc  in  the  \\\a  r,.,i;.>.   ,..,, .. 


I! 


■  li 


i 


■n  .-s  i^^i 


240 


OPINIONS  OF  E.tllNENT  LAWYERS. 


its  iibriilgod  l)y  <;i:ints,  &c.  made  to  the  inliabitantt^  of  the 
respi'ciivo  provinces  is  that  power  over  the  subjects, 
eonsitttTnl  either  si'parutely  or  collectively,  by  their  rep- 
resentiitivc^,  alii<'li,  by  the  coiaiuon  law  of  the  lan.l,  aD- 
.structeo  from  all  act*  of  parli-unenv  and  grants  of  liber- 
ties .vcc,  Irom  the  Covni  to  the  subjects,  the  King  could 
ri<ihtiiilly  "xerciso  in  England. 

The  (iiilv  point  of  pic'-ofrative  which  thisquestion  re- 
lates to,  is  that  power  which  the  Crown  has  of  sunnnon- 
inir.  pro.-o-ruinti.  i^c.  of  [larliaaients;  and  here  your  Lord- 
ship will  be  pleasi  to  observe  that  this  branch  of  the 
pren.iiativf  does  at  ilii- time  subsist  entirely  upon  the 
font  ,,f  tl),  couiiiioii  law  and  custom  of  parliament**, 
wl.ich.  in  this  ic-pect.  nnist  be  (-onsidered  as  part  of  the 
coll, ill  .1  la*»-,  wbi.'U  has  never  been,  in  this  particular, 
anywise  .  .rid.ii>d  or  ■•iiumscribed  l)y  any  act  ot  par- 
liauKMit  ;  and.  tiirrcfore,  if  the  atHrmative  part  of  the 
qi'.e.slioii  i-  iiiiiaacliriilile  in  Knjiland,  it  is  imposMble  a 
governor  should  be  empowered  to  pnMJli.-e  it,  in  Amer- 
ica. 

riif  .t  ti'ii).,n  itioii  tlicrcforr,  of  mis  ipiestion  de- 
pends rntirclv  upon  tin-  cu- toui  of  ur  Knglish  parlia- 
uient.s ;  in  relation  to  which  I  si,  ill  observe  to  your 
lordslnps  the.se  rwn  parti<Mdars.  i  c  the  present  practice 
in  our  (•arliameut  as  il  uppei'-s  to  the  public,  and  the 
WoriK  of  the  writ  of  proiniratiou. 

Ev'\y  parliament  ubei.ei-  it  be  upon  original  sum- 
mons, or  prorogation,  &C.  is  always  appouit^Ml  to  meet  at 
a  day  ec  tain,  on  which  day  tbc  nieiiilMis  ar<'  obliged  to 
meet  together  unless  the  King  does  tlnuk  fit  to  «lis- 
charge  th'Ui  from  their  attemiance  ;  and  as  their  obliga- 
tion to  attend  does  arive  i'roni  writs  under  the  likmI  -«al, 
tlieir  dis<'liarge  mu.st  likewi.so  flow  from    I  lie  -.uiie  seal. 


OP  THE  COLONIAL  CONSTITUTIONS.  241 

Now,  if  a  parliament  is  summoned  to  meet  on  a  cer- 
tarn  day  and  the  Crown  thinks  it  inconvenient  the  nar- 
luunent.hould  asseml.e  on  that  day  on  which  the  wHt« 
of  mnnmon«  were  returnable,  a  prochunation    i.  issued 
as  It  IS  generally  supposed)  to  pn.ro.ue  tl.e  meeting  of 
the  parliament  to  some  further  day,  without  there  hehi-. 
any  necessity  of  their  meeting   upon    that   day   up..^ 
which  their  attcM.dance  was  requ'^ed  hy  the  orL/nal  writ 
of  sunimons.     !„  this  present  parliament,  we  .v  i,  pro- 
rogued Irom  time  to  tii,ie,and  proelamations  are  .nn.s.'u.t- 

ly  issued   to  notify   it  to  the  k;..gdo„.;  .„d,  although  it 
1.S  usual  upon  those  da vs  to  whi.h  parli.uaeuiM.n.N  n,v- 
n.^M.e,I,  and  when  a  further  prorogation  is   ,„  1,.,  ,„,,,, 
n.r  several  lords  and  members  of  the  hous.  to  .ttend  in' 
the  parhament  chaml>er  ,m   that  day,  vet  surh  th..ir  .t 

tendance  IS  noways  necessary,butth..pnwo.:,,, on  woukl 
fH-' just  as  g<vKl  if  they  were  a!i  i„  tl.e  .oun.rv  .,„!  ,he 
••lerk  o  th,.  p.rlia,.,„t  ,,,,Ube  vniMo  bi.  ,;.ll..v  olH- 
cers;  fi.r  ; lie  writ  o,  prorogati.u.  being  always /..fc./ 
-«'*'  .  ay  »K.ro.e  the  day  to  whi-h  parban...nt  stoo.!  pp.- 
roKued  all  the  members  are  thereby  aetuallv  disH.u.ed 
liom  their  att*.'ndaiiee. 

r  wo.d,l  lK.g  leave  further  toobsc  rve  to  vo.,  InnKbiiw 
that  It  H  not  by  these  ..roelamations.th.it  p.n  lun,. ',ts 
are  prorogued,  but  that  they  do  always  suppo...  .  ,,,it 
l-atent  for  the  prorogation,  wbi.h  writ  w.s  ...nently 
when  apn.rogat.on  was  intended,  s.  .,  ,,.  U.e  sherills  of 
theseveraleouu.ie.    l.ywh,mMtu..s    pHH-hnnu-d    i,.  or- 

;'""  '"  ■^''^'"'  ♦'"'    ">^""''-'-'^  tlH-    troubh.  of ,„,    ,•,„„. 

t^>wn.  and  the  eonnMes  ai.l  towns  tln-v  npn.s.Mte.i   the 
.•xiK'n.se    of  th..irjournies;   but  the   latter   prarti.e' b.,s 
'-'•u   to  supply  this  by  printed   pr.H-lamat ions   ibough 
t-  tins  .lay.  according  to  th-  an<.ent  n.s.o.u    (br  wnt  m 


'■■■.%-i 


w 


1  M 


iT 


242  OPINIONS  OF  EMINENT  LAWYERS. 

comtontlv  mul  in  the  piU'li;mu-nt  chiunl.or:  iin-i  tliut 
your  lordships  may  jncl-..  wIk'Urt  tlu-  moinbers  were 
discliarired  fr..m  .itteii.r.n-  on  tl.e.lMV  t-  wLleh  the  par- 
liament ,<to.M  pn.r..-iRMl.a.i(l  ihat  e..nse.[uently  noineet- 
ing  could  l.e  uece^s.rN-.  1  uu.st  I.e-  leave  to  mention  to 
yourlordshii>s  some  elau-es  of  the  writ. 

But  first  I   must  ol.serve.  that  th."  writ  is  not  directed 
to  anv  particular  person,  hut  is -eneral.  lik»'  a  prorlan.a- 
tion.'the    stNle    of  it  i-  thus:   -  / >r. J^h'.ii.s    ct  ^H^hm^n., 
nostril  pro  Infl^.  noi^nnfflhu-^  <i  j>rocerihn^    I'C'jni    imstri 
Uu,lw  ac  dikdi>i  d  JidAihui  umfri-s  milHH"'-^.  rl r !/,».,, 
et   In-qeu-slhn.   dktl   re.jn!  no.fri.   cO'.."  an.l  then,  after 
^.pecifviu-  thedav  to  which  the   Kin- thinks  tit  further 
to  proro-ue  hi^  parliament,  the-o    is  a   clauM-  inserted. 
,;,,   „„    ...her    purpose   hut    t<.   -lisrhin-     thr   memhers 
fynm  mrrtin-.  on    the  day    to  whi.d>  they    were  antece- 
,l,.„,lv  .„nnnonr,l.vi/,:  ^'lia  qvwl   nee  COS,    nee  (diqim 
veMnnn  n.'  dnhn,,  dkm  ap>ni  anfatemjrneduiam  com- 
perere  hneamini,  .sc»  arrkmhi  :    rohmus  enim  vas  et^ 
quewUhet  rc-'<tnm  imh  enjn  ,,0.9  jn  ,ut»-^  eronrrarK  dk. 
Now  every   sension  beini?  in  law  a  distinct  parliauimt. 
and  every  proroiration  putting  an  .nd  to  a  seBsion    thr 
ohligati..n  upon  the  memWrs  to  meet  on   th.-  day  men- 
tioned in  the  writ  of  prorogation,  isolniously  the  same 
M.  it  wis  upon  the  original  writ  of  summons  ;  and  eon- 
Bapienth   iftli.' Crown  enn,  by  writ  of  prorogation,  dis- 
charge the  members  from  attending  on  the  day  fixed  in 
the  first  writ  of  summons,  the  Crown  enn,  in  lik     -"-»- 
ner,  by  another   writ,  discbarge   Du-m  as  to  llie  dny  u. 
which  the  parliament  stands  prorogued. 

Ah  to  adjournment,  whether  it  b.-  a  n.  '  ndjonrn- 
ment,  or  ati  adjournment  flowing  from  the  V(.t«'s  of  the 
houses,  as  the  Crown  could  midoubte<lly  diswilve  them 


OF  THE  COLONIAL  COX.STITUTIONS.  243 

.ithont  .uHerm.  t.on.   to  un.t.  wl.i.h  puts  an  end  to 
^'-'-   -•..•    I.nu.    so  li!..vis..(.-l.,.,.   i.,„,,t    of  less 

'^''^  .'"'"'  ''^^'    "    ■-    ^•--    i-tculs    to  .ontinu 
'''     T"'"-    ''"■■    '""'^^    ''^'    -"'■-'    '"   ".ect     and    it 

'•'''''•''■  ^•''•'  ••  -----u,  aud  to  conunenoe  nnother. 
M:iv  27,  171:)  -^''^"-  ^Vest. 


(oO  7•^  ,y.;./.,  ,^-  f/.  Affor.e./ a,.Uolr  .for-r^en,. 
u^  J^ror,  ,n.nfa.oH  in  17(,0,  o.  ti.e  a.ter.nUatio. 
of  n  Governor  fi  vomiuh.><io,K 

Tu    flic  "niM-lit    Uniinirtltlo   tlio    T,.,.,l.    r'  ■     ■ 

1  lack'  and  lMant;itions. 

Mav  ft  jil, ., •,,-.•  ymir  Lordships; 
•■]-"    P-nisal   of  ti.cir   Exc-dlenHes.    fl...   [..n]s  .I„s- 
<.ce.s   l^''-to,|..p,vsideMt  and(-oM,.nl<,fNev,.   d.(- 
P'u.iiKi,    l(,.).s,  and  ol  a  convof  acorn- 

;;;;;-'- .-.'•■'lVIIi-M,iest,M<.r^,.,,,,•Kox,  dated 

,    ;"'    -"'-'"'-•.  l^'OO.   wonn.    hu.nl.lv  of  opinion, 

'"'■^  ;v'''; ''''•"'''■''' ^'-''i '''■'''''''•'•■  ^- -■-.,...  d.t,.,-- 

■''7;'    ^'Vr''-''''  '•'<•''' 1  !••-.,  up,,,., iH.am- 

-;'<;'  tuioMd  i-ov  ,1.,,,,  „„,  ,.d.ii,.a>i„u„n.is..oM.- 

"'isNion,   ami    wc   conci'ivf    1,,    ,.  •„i,(    ,„         ,  • 

.     .  '■'  ".»     *  "  iiu'  oj    (us  coin- 

nn.H.o„,  cl.,siK«.Mc.,.«  tiK.   i     ..uuntand  (o.n.cl    ..nd   h 
|<u.nc,..   iMM.M-lf  that  „.A...rnmont,  until  the  anual  of 
'  "loui'l  CiHtrinj-ton  I'un. 

.  .  Tllo    TWKVOK. 

AiiLMi-t  !)    171;,.  ,    ,, 

•'II  VWLES. 


i  !  I 


I  M 


244 


OPINIONS    OF  EMINENT  LAWYERS. 


♦, 


(().)  The  opinion  of  the  Attorney  and  Solicitoi--Gm- 
era!,  Yorho.  and  TaV>ot,  on  the  effect  of  notice  on  the  va- 
lidity of  a  (rovernor's  commission. 

The  Lords  Proprietors  of  Carolina,  having  always  ap- 
pointed governors  of  that  province,  before  they  made  a 
sale  tlKMoof  to  the  Crown,  those  governors,  with  the 
con-  nt  of  the  Council  and  assembly  there,  passed  laws^ 
and  have  continued  so  to  do,  even  since  the  purchase 
made  by  the  Crown,  not  having  notice  of  the  said  pur- 
chase;. 

Qiuere. — Whether  any  laws  passed  after  the  said  pur- 
chase by  the  proprietor  governors,  in  their  name,  before 
notice  of  the  sale,  are  valid  7  Whether  laws  passed  in 
the  proprietors'  names,  after  notice  of  such  purchase, 
a;i(l  bd'ore  the  King  ai)iK»intod  a  governor  of  his  own, 
be  valia  f 

\\\'  arc  of  o[!inion,  tliat  laws  pass^'d  by  tho  viovornor, 
ap|Hiint((l  li\  lb'  Lords  Proprietors,  and  in  tlieir  names 
al'tci-  tlir  ah',  and  bftnrc  notice  thereof  arrived  in  the 
prii\in(c,  are  of  tho  same  validity  as  such  laws  would 
ha\('  licrii  if  they  had  been  passed  in  like  manner  before 
.-^uiii  >ah'  ;  1-ut  that  any  laws  j;assed  in  the  proprietors' 
names  after  notice  of  their  having  conveyed  their  in- 
terest to  the  Crown,  are  absolutely  null  and  void. 

P.    YoRKE. 

August  II.  \r.Vl.  C.  Talbot. 

(7.)  'llie  opini/)H  of  Mr.  Thomas  Reeve,  ami  Mr. 
Lut'tu/rfie,  on  the  continuance  of  tlie  (focernors  com- 
mission. 

This  act  Ih  to  cont-uiie  no  longer  than  Mr.  Worsley 
shall  contlmu!  Ciovernor,  and  be  personally  resident  on 
the  i^lalnl,      If  ln'  ..ii<i  ceases  to  l>e  (-ovcrnor,  though  he 


OF  THE  COLONIAL  CONSTITUTIONS.  245 

hath  afterwards  a  new  commi8.si„n  granted  him   I  ,on 
ceivo  the  act  i.  determined.     By  tlie  stat.  of  6  Ann   the 
comnnssions  of  the  Governors   of  the   plantations'  are 
continued  for  «ix  months  after  the  demise  of  the  Queen 
or  her  successors  ;  and  if  a  new  commission  wa.s  ^rant^ 
ed  to  Mr.  Worsley,  within  the  six  months  after  hi^  late 
Majesty's  demise,  it  may  be  a  continuance   of  him  h 
Governo.  within  the  intention  of  the  act,  though  1  think 
this  pomt  is  something  doubtful ;  but  if  the  six  months 
expired,  and  then  a  new  co.nmission   was  .rant..]    it 
seems  to  me  that  the  act  is  determined 

February  1,  1728.  m   ,, 

1.  Keeve. 

I  am  of  opinion,  that  upon  the  demise  of  his  late-  \I, 
jesty  the  act  for  granting  the  £(;()00  ^,,  ,„„,,,^^   .,,j 
not  determine  .   for  I  think  it  is  clear,  that   the  Gover- 
nors commission  continued,  for  the  space  of  six  months 
after  the  death  of  the  King,  by  virtue  of  an  a.t  of  p.,,- 

1—nt,  ,n   Qu..n  Anne  s  reign,   unless  the  ninisliou 

was  supersede.:  ,n  the    mean  time  ;  .„d  if  the  ...nnui.- 
s.nn  wits  determined  by  ending  at  the  six  innnths    1  .„. 

<•!  opinion  that  th.  act  h,  1  detenuine<l  also,  tiHM.Jb  tin. 
Governor  had  b,vn    appointe.l    afterwards,   berau^e    b. 

cm.eee.u.ed  to  Ik- G.vernor  under  any  commission  Hut 
If  the  lact  was,  that  within  the  six  months  be  had  a  new 
commission,  it  i-"^  .i-ubtful  whcth..,- bis  continuin-MJov- 
ornor   without  intermission,   will  not  be  sulbri..,,,^,,  .,,. 

-nsideration  of  these   three  clauses,    I  au.   iuel.uable  to 

'"->»^.  that  It  will  entitle  biu,  so  long  as  he  remaius  (Jov- 
ernor,  and  continues  without   intcn.i.ssion  ;  but  neilcms 
't  ..light  be  lua.ie  plainer  by  seeing  the  whole  a.t 
February  J,  1728.  t  i 


!  I 


246 


OPINIONS  OF  EMINENT  I  AWVERS. 


M 


N.  B.  The  ihst  C()niiiii.s.sion,  datjd  11th  Januarv,  the 
8th  year  of  our  reign.  The  second  commission,  dated 
8th  Hay,  1728,  being  the  first  year  of  our  reign,  which 
was  eleven  months  after  the  late  King's  reign, 

(8.)  7 /tc  opinion  of  fill:  AttaniC!/  and  >SoJici(or-(rt ti- 
ind.  ]ii/(l( /\  and  2Inrriiy,  on  the  <iiie-siioj),  n^Jutla r  the 
'jnat  ■•<i:(tJ  of  the  itroriiwe  shoiih/  )iot  In'  (tjfircd  tot'-irt/ 
Oi'f  of  tjorerntncnf,  that  requires  a  .^eaJ,  in  the  Colony. 

We  have  ])erused  the  case  you  inclosed  to  us,  ])\  tlie 
order  of  the  Lords  Commissioners  for  Trade  and  IManta- 
tions,  and  find  it  necessary  to  troulde  you,  to  tr;, nsii.it 
to  us.  a  <'oi)y  t»f  my  Lord  Howe's  couunissiou,  which  is 
hut  sh(.rtly  stated  therein,  that  weuiiiy  the  l)cttci- judge, 
when  we  peruse  tlic  whole,  whether  the  office  of  Sur\ cy- 
or-General  was  in  liis  power  to  dispose  of  hy  that  com- 
niission,  and  whetlicr  liis  private  se;il  at  ;inns.  he  n  pro- 
per way  <>f  putting  that  ])ower  in  execution;  we  there- 
fore desire  U)  see  tlie  same,  and  to  know  wliether  th(> 
Governor's  ])rivate  seal  is  cdmmoiily  made  use  (^f,  in  the 
grants  of  any,  and  what  offices  in  th<'  plantations. 

It  will  likewise  i)e  necessaiy  to  l»e  informed,  whether 
the  insta'iee.  in  T'l'.H),  of  a  grant  of  the  sain(  nature,  he 
the  only  in>taiiee  of  the  grant  of  that  ojhee.  or  whether 
it  has  heeii  !i-nally  granted  ii  the  same,  or  am  .  and 
what,  diffeieiit  manner,  and  '.iiider  wh.it  seal,  and 
\Jiether  geiK  rally,  or  for  life,  or-  at   pleasiU'e. 

1).  IUder. 

Fehruary  'JH,  IT-'^fi.  J.  Stiiange. 

^^/^r/r.  -  \\  iieiher  the  great  seal  ^A'  the  province,  or 
island,  should  not  Ne  allixed  to  evei\  aet  of  "overnmciit, 
that requirt'H  a  seal,   notwithstjuidiiig    it  ma\  ha\e  heeii 


-iri 


or  THE  COLONIAL  CONSTITUTIONS.  247 

til..  (Mistoni  to  iii)p„i„t  certain  officers,  and  to  issue  pro- 
clamations, under  the  governor's  private  seal  at  arms  ? 

We  liave  perused   the  copy  of  my  Lord    IIowc-'s  ccm- 
■n.ss.uu,  and  Mr.  Popp:,'s  answer  of  the  'iTth   inst.  to 
"•u-  I.tter,  .lesirino-  some  furth-r  information,  and  which 
we  have  returned,  annexed   to  tla'  case. 
_    And    as   to   the    first    <.,u,n;  we  observe,  that    there 
!>■  no  part  of  the  commi.s.sicm  that  o.i^  cs  mv  Lord  Howe 
^M-wcrto^^rant  t lie  office   in  .(uestion.   the  onl.  chinse 
^vllH■h  we  r:,n  fin.i  relating  to  ^r,,,„tin,^-  offices  extending 
""'•'   *'»  .)'"l'"''i='l  <^"i'M-S  and  the  ministerial  ones  attend"- 
nig  ui-on  thru,.      But  supposing  a  power  in  the  Governor 
to  grant  (1„.  ,,ffir,.  iu  ,pu.4i<.u,  we  think   the  seal  to  be 
u>ed  upon  th.K  ocvanon  ought   i  .gularlv  to  be  the  -.reat 
sci.l  :  but  if  th.rr    n.^.r  was  any  grant  otherwise  "than     ■ 
niHh.-  the  seal   a.    :u.u.s  of  the   Covrnor.   an.l   that  has 
l"'<nusc<l  ni  the   grant   of    >ther  such    like  offices,  such 
us.ge  may  .lisp..n.><e    with  the  gvucral  iule  re,piiriug  the 
great  seal,  and  the  grant  may  be  good  uotu  ithstan  ling  ; 
and  then,  ue  are  of  opinion,  the  dratii  of  my  Lord  Howe 
^wH  not  put  an  end  to  the  grant. 

As  to  th.-  second  rpuire,  we  are  of  ..pinion,  that  if 
^nch  proclamation  as  is  m-utioned  had  i.<sued.  it  wouhl 
i.avema.h-  no  alteration  as  to  the  coatinuanr,.  of  tho.c 
ciVil    and  nnlitarv   oif,.,.,-..    in   their  emph.vmcnts    uh,, 

'"'^''  ""•  ■^""'•'  >""''■'■  <li'-    li.n.d   aiulpnvatv  seal  of  the 
fio\  ri'nor. 

'•'an^wcrto,|M.   third  y.,,..,,   uc  ....■  of  opinion,  it  is 
Halest,  and  tla.rHon.  u.o.t  advisable,  that  nil  acts  of  gov-  ' 
".Mu.ontshoul.l  I.,,  nud,.,-  th..   great  .seal   of  the    i.l,,„d- 

;'"'"•■''  "'""■'•'•  ''••'■^'-"sn,.h,,nu8nge.  as  is  UH.ut,ou..d 
"-  'hcy./.m-,   we  think    Ih;,t  ,t  nun   be  .suffiri.Mit  to    ju,.- 


i   rj 


I'fl 


\\\ 


248 


OPINIONS    OF  EMINENT   LAWYERS. 


tify  the  use  of  the  private  seal  at  arms  in  those  cases 
to  which  the  custom  extends,  which  however,  are  liable 
to  disputes  that  can  never  arise  if  the  great  seal  is 
used. 

D.   Ryder. 
Fel)ruary   26,  173C.  J.  Strange. 

(U.)  The  ophiion  of  the  Attorney  and  SoUcitor-Gen- 
eraJ,   Jiyiler,  and  Murray,  of  the  Governor' a  right  to 
prorogue-  the  A-s-^'imhly  to  any  place  ivifhin  his  govern,- 
tnent. 
To  tlic  Rijrht  Hcmorablo,  the  Lords   Commissioners  for 

Trade  and  Plantati«ms. 

May  it  please  your  Lordships ; 

Til  ])nrsuiuice  to  your  Lordships'  desire,  signified  io  us 
l.y  Mr.  Hill,  in  his  letters  of  the  30th  of  April,  and  11th 
of  May  last,  referring  two  acts  pa.ssed  in  His  Majesty's 
province  of  North  Carolina,  in  1740,  viz  :  "an  act  for 
tlie  bettor  ascertaining  the  number  of  members  to  l)e 
clu'sen  for  the  several  counties  within  this  province,  to 
sit  ill  general  assembly,  and  for  establishi  ig  a  more 
(■(luul  representation  of  all  His  Majesty's  subjects,  in  the 
liouse  of  burgesses;"  "an  ac^t  to  fix  a  place  for  the  seat 
of  government,  and  lor  keeping  public  oftices,  lor  ap- 
pointing ciicuit  courts,  and  defraying  the  expense  there- 
of, and  Jiho  for  cstMblishing  the  courts  of  justice,  and 
rcguliiting  tlie  ])ro('eedings  therein;"  for  our  opinion, 
wbctlier  the  said  acts  are  proj)er  to  be  confirmed  by 
His  Majesty,  jind  transmitting  several  papers  .dative 
tliiTcto  (all  which  are  herewith  returned):  we  have 
taken  the  >ame  into  consideration,  and  iiave  heard  conn- 
ed for.  and  i)gi>i'i!*t.  the  said  "a(!t  for  the  bett»'r  a.^certain- 
ing  the  imniber  of  members  to  be  choHen  for  tlie  several 


OP  THE  COLONIAL  CONSTITUTIONS.        249 

countie..  within  this  province,  to  sit  in  general  assemhly 
and  ior  estabhshing  a  more  equal  representation  of  all 
HiN  Majesty's  subjects,  in  the  house  of  burgesses  "     Al 
though  tlie  Governor  of  ]Vorth  Carolina  may  certainly 
prorogue  the  Assembly,  to  meet  at  such  place,  and  tin.e 
:i.s  he  shall  see  proper,  and  although  it  has  not  been 
made  out  sufficiently  to  our  satisfaction,  that  the  pre- 
sence of  a  majority  of  the  whole  Assembl-  is  absolutely 
necessary  to  the  doing  business,   as  alleged  W  the  peti- 
tioners against  the  said  last  mentioned  act ;"  vet   th.-se 
two  acts  appear  t<.  have  passed,  by  management. 'preci- 
I'ltnt.on,   and   surprise,   ^^hen   very   few   members  w.re 
Prcsen     and  are  of  such  nature,  and  tc-ndency,  an,l  I,ave 
Micl,  ellects  and  operation,  that  the  Cnvrnor   l,^   his  i,, 
^tru,.t,ons,  ought  not    to  have  assented  to  th^u;,  thou.-h 
*l'ey  had  passed   deliberately   in   a   full   A^s.n^Uv  ■  .,n,I 
we  are  of  opinion,  that  they  are  not  p.op.r  to  ).,' ,;„,. 
iirmed. 

Docend,or  1,  1750.  ^_  jvj,,,^^^^^. 


m 
m 


111 


II 


(10.)   7^.   ojunion   of  tlu    Chi.j-,h,.tlre  Jfon-i,,  of 
New    ^orl;  on   the  question,   uMu  r  fh.    rhanye  of  oL 
('^>nn,nr  woulf  dl^^olre  the  A-s-.^yM/. 

V..rc.-Whether  a  Governor  publishing  a  eomnn-ssi<m 
'''"''■'■  ^''"  "''^'^^  '^-^1'  ^^''i^'''  det.ru.ines  that  of,,  ,;.ru.er 
'•"^^■'•"•"•-'•=V"  legally    meet,    ..ul   a.t    with  .lu-  snue  .s- 
■-"''l^  •  tl-at  was  .hosen   by  virtu,  of  ,1,,.  Kin^.s  writs 
J-ted  by  tbe  foru-er  Govem.r,  th.y  standing  Tontiuu..! 
''>  '^'i)-"nnnen.  ;  or  whether    (be    publication    of  surh 
'"•^^  <'omnussi.,n,  does   .^,,v.   t.rio  .lissolve  au  assnnbly 
■Ho  ch..sc.„,  n<.twithstftmling  surh  conli.uian.  e '/ 


n 


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ll^  <y 


2-")0 


OPINIONS  OF  EMINENT  LAWYERS, 


In  ()])0(lience  to  your  Excellency's  commancTs,  I  have 
oonsidured  the  above  questions,  and  am  humbly  of  opin- 
ion, that  the  publication  of  your  Excellency's  commis- 
sion, determining  that  of  Brigadier  Hunter's,  doth  not 
dissoh  e  the  general  Assembly,  chosen  by  virtue  of  the 
Kings  writs,  tested  by  Brigadier  Hunter,  but  that  you 
may  t'itlier  meet  them  at  tiie  time  they  stand  adjourned 
to.  or  adjourn  them  to  a  further  time,  if  you  think  con- 
venient, and  legally  act  with  them;  and  the  laws  made 
by  you  and  them  in  the  usual  manner,  will  be  as  legal- 
ly made,  and  as  nmch  binding,  as  any  other  acts  of  the 
general  assembly  of  this  province,  or  as  if  they  had 
been  made  by  you,  with  an  assembly  chosen  by  virtue 
of  His  Majesty's  writs,  tested  by  yourself. 

1  wijuld  u(jt  have  troul)led  your  Excellency,  at  this 
time,  with  aii\-  thing  but  this  direct  answer  to  3'our 
question,  had  not  a  groundless  notion,  contrary  to  law, 
and  the  received  practice  both  of  this,  and  all,  or  the 
greatest  ])art.  of  His  Majesty's  dependent  dominions, 
latfly  obtained  among  some  persons,  viz  :  that  the  de- 
termining thi'  commission  of  a  Governor  has  the  same 
ell'ects  iq)oii  this  i)rovince,  as  the  demise  of  the  King 
would  tiave  both  upon  England    and  this  province. 

That  opinion,  if  pro[)agated  with  the  zeal  some  weak 
men  se(Mu  to  entertain  it  with,  will  at  this  time  be  of 
(hmgerons  constMinence  to  the  public  peace,  and  may  for 
tlic  iiituiH'  be  of  no  small  prejudice  to  the  service  of 
til!'  Crown:  1  sjiall  therefore  give  my  reasons  for  the 
answer  lliave  given,  and  endeavor  to  show  the  aljsurd- 
ity  of  tliat  notion. 

Onr  law  liooks  have  but  very  little  to  be  met  with 
on  thi-  head,  tlie  p.owers  of  Kings  and  jKirliaments,  and 
tlieir  act-    l»eing  latherto  be  obeyed  than  dispjited  :  how- 


4  ^ 


OF  THE  COLOMAL  CONSTITUTJONS. 


251 


ever,  they  are  not  altogether  silent  on   the  suhject,  and 
afford  us  one  rule  in   law,   that  I  take  to  be  Hutli<;ient  to 
govern  and  determine  this  matter.  It  is  in  Pastern's  cast 
4th  Edw.  IT^.  fo.  43,  41  Paston   was   outlawe.l,   and  the 
oertiiicate  of  outlawry  returned   in  the  tin:    of  Ed.  IV. 
by  two  coroners  of  the  county  ol  Suffolk,  chose  in  the 
time  of  lien.  VI.,  and   Paston's  counsel  prayed  the  out- 
lawry nnVht  he  reversed,  ])ecause  tlie  powei-  of  the  coro- 
ners, as  well  as  othei-  oilicers,  determined  h\-  the  demise 
of  lien.  VI,  to  which   he  was  an-uered,   that  coroueis 
were  chosen   l)y  virtue   of  the  Kin-'s   writ,  wliich  elec- 
tion, certified  into  the  chancery,   is  a  judicial  act  of  re- 
cord, and  judicial    acts  done  \n  the  time  of  the  Kino- 
tii;.t  was,  remained,   notwithstanding  tlie  demise  of  the 
Khig,  and  therefore  the  coroners  remained  ;  to  this  was 
rejdied,  that  the  electi(m   of  knights  of  tlie   sliii-e  was 
equ  dly  a  judicial  act  of  record,  hut  did   i;.)t  oi.erate  so 
as  to  continue  the  kni-hts  after  the  demise  of  the  Kin- 
hecause  by  such  demise  the  parliament  wasdiscon-  'iiud,' 
&c.     The  case  is   a  long  case,    too  long  to  transc    be:  I 
shall  therefore  take  it  as  it  is  abridged.    b\  Sir  Uobert 
Brooke,  in  the  time  of  Queen  Mary,  the  law.   in   that 
point,  of  C(u-(mers   and   kniglits   (.f  the    shire    bein-  as 
above,  viz:  that  the  choice  of  both  was  a  judiriai  act  of 
record,  but  that  it  did  not  .iperate,  so  as  to  continue  the 
knight  of  the  shire   alter  the  demi.se  of  the  Kii^g,  thou-h 
it  did  U>  ccmtinuo  the  coroners  :  he  say«    not.  that  a  co- 
roner is  not  made  by  commi.ssion,  but  by  writ,  and  when 
lie  is  elected  by  writ,  this  is  returnetl  into  the  chanccrv, 
ii'Kl  is  a  judicial  act  of  record;  and  th.ivtorc,  when  the 
Khig  dies,  he  shall  remain,   whereas  all  luanuer  of  coui- 
ixissions  cease    by   the   (h-mise  of  the    King,  as  comniis- 
siohs  of  justices  ct  A//>v  mo,//,  but  judicial  acts  remain 


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252 


OPINIONS    OF    EMINENT    LAWYERS. 


and  .so  a  coroner  .shall  remain,  till  removed  by  the  King'.s 
writ  {Cate-sh,/).  But  knight  of  the  shire  shall  cease, 
when  the  parliament  ceases,  by  demi.se  of  the  Kiiijr.  or 
otherwi.se,  ratio  videtur,  becou.se  the  p.vrliament  cJiises 
by  it,  contrary  of  coroners— that  is,  where  the  whole 
ceases,  the  constituent  parts  must  also  cease. 

It  was  an  a-reed  point,  that  on  the  demi.se  of  the 
Kin- the  parliament  was  determined,  though  they  do 
not  tell  us  the  reason  why  ;  but  that  we  have,  in  th.- 
•'pii'ion  i.f  the  judges  in  Sir  Henry  Vane's  case,  viz  :— 
every  parliament  i;,  called  to  consult  with  the  person 
of  the  King  who  calls  it,  and  therefore,  upon  his  (icatli. 
it  is  (leterniined;  for  they  can  no  longer  consult  with 
him,  for  which  end  they  were  called.  KeJijyn's  Uen 
f  l:>.  ^' 

Til  is  ^hows  why  the  demi.se  of  the  King  dissolves  tiie 
I>arh;niK'iil  ;   but  the  rea.son  is  not  the  same  on  thedeter- 
iiuning  thi-  commission  of  a  Gov'ernor  ;  foraseverv  par- 
liiiMii'iit.  cilled  to  considt  with   the  person  of  the    King 
\\linciill>  it,  inu.st  determine  upon  tlie  demi.se  of  such 
King.  ;,i„|  v\,'yy  a.ssembiy  here  being  called  to  a.ssi.-t  oui- 
(  ;il.tiiiii-(;riieral,  and  Oovernor-in-Chief  of  our  province, 
^'•■/\\\  g.p.ial  as,senibiy,  &c.,    though  it  di.s.s(,lve  on  the 
diiuis,.  .,1   tlu'  King,  in  whose  name  the  writ  i.ssued,  the 
(i"s,.|::or  l.cing   not   longer  our  Cfovernor,    that    i>^   the 
<invenior  !ippointe<l    by   the    King,    in    wh«»se  name  the 
writ  issi.c.l;  yet  should  therein;  ten  succeeding  Gover. 
iK.rs,  during  the  reign  of  one  King,   the  t+'iith  would  be 
as  much  our  (iovernor,   that   is,    the  (iuvernor    of  that 
King,  in  wImw   name  the   writ  isNued,  ah  the  (irst    wiis  ; 
aii'l  I  he  ,iss,.,nb|y  being  continue<l  by  prorogation,  .)r  iid- 
,i"ninrii.iit,  might,    by  virtue  of  that  writ,   as  legally  as- 
^ist  the  tenth,  a.s  (lie  Jirsl. 


OF  THE  COLONIAL  CO.NSTlYUTIONS. 


253 
Somo  por.„„,,  ,„„_v  perhnp,.be  „f  „pi„i„„  „,,„  hy 
..m-  f,„v..r,,or  ,,,  rne,nn  the  person  „f  the  Governor  ieZ 
m.  .1.0  ,vr,t,,  „„d  ,h«t  tl,e  ,«„,„b,.v  i«  ,„  „,,j  ,,;,„  "^ 
''-l-''--".  -.on,...t«,epc.rso„„f,,,oKi„.„," 

™  »...<.,„ „.,.„.,,  If  ibis „pi„i,„,  ,,,,,„,_ ,,;, 

■l'-'l."."'."..val  or  ,l,„  Governor  will  1,0  en,,  I  (i„,|, 
r  ■;'--»  -th  tl,„  demise  of  the  Ki„,,  „„„  ,  „  „ 

;;::,,::■,•:■;■!"•<''•■■'" "- per,o„;,h:!  r 

u.„„„l  ,1,.      ,„v,.r„or  testing  tl,e  writ,     Si.uv  then 

-l.-,...l,  ,„  ,l„s,,,«,  .l,u„  as  the  servant  of  ,!,„  Kin.  Z 

-"h"n.a„„tl,eass,stan,.ein,en,l v  the  writ  Tso 

^  """•   '•'"   ""■  '«™-fi.   of  his  niaste,   ,vh„„,t 

'r:7:: ■ » - 1.1.-,, i,oth ,■, , ,i,ew„,,s    ; 

"■'",' ■"•'-'    >!'--- ,lvn,„vasl ,: 

,"" ':■':'''■">'-"'■  ™i  bo  with  the,,,,  (,;,' 

lll>-(i\(.     ,111   ;i>iS(>tll    ill'       ..  .     *l  1  •  '      '.lie    to 

■ ■■-■•-^.-:.::::i::;;:;;;.:,;;:;r''?' 

-"-■t,:;:::;?;:::,,:;:"; '--■■■••■' 'i.at 

'  MM-tlM-    |.,Hl.,niM'Mt   .lis,-,Ml(il,„o,l 

,„,,,    .,,,            """I    ll,aveshown,    a„,l,   ,|,at    ,hev  .lo 
■"   ". •■'•'■"    ""•  •l'-.,.nnina,i ,■  ,,   ,:„v,.,„or., 

;;"::;--'■;". "" i-"'- „,„ , , "; 


lii 


If 


254 


OPINIOr^  OP  EMINENT  LAWYERS. 


that  judicial  acts  of  record  I'emain.  If,  then,  tlie  death, 
removal,  or  determination,  of  a  Governor's  commission 
does  not  affect  this  province  and  tlie  as.semhly  in  the 
same  manner  that  the  demise  of  the  King  doth,  tlion  it 
will  follow,  that  an  assembly  regularly  idiosen,  and  re- 
turned into  the  chancery  here,  is  such  a  judicial  act  of 
record  as  will  remain,  notwithstanding  the  determina- 
tion of  the  Governor's  ct)mmiKsion,  or  such  death,  or  re- 
moval, of  a  Governor. 

That  the  death  or  removal  nf  a  Governor  has  not 
that  effect,  is  agreed  on  all  hands,  for  thui  does  not  de- 
termine his  own  commission,  a  Lieutenant-Governor,  or 
President  of  the  Council,  being  directed  and  enal)led  to 
execute  the  powers  of  it;  so  that  the  matter  nuitt  rest 
solely  on  the  deternnnation  of  the  patent,  and  if  that 
has  not  such  an  effect,  the  case  will  be  pretty  clear  that 
the  determination  of  such  commission  does  not  dissolve 
the  general  a.sscmbly.  Fir-^t,  the  determination  of  the 
Governors  j)atent  does  not  determine  the  office  of  any 
person  holding  by  patent  under  tlie  great  seal  of  Kng- 
liind.  beciuise  such  officer  holds  his  oHice  by  the  same 
autlu)rity  that  the  (Jovernor  hohls  his;  and  if  it  can  l)e 
supposed  that  the  (h'tenuining  of  one  ])ateiit  can  deter- 
mine another  indepeiKk'nt  on  it,  the  deteniiiiiiiig  any 
other  palciit  in  the  government,  may  e<pially  conclude 
tiie  rest,  and  tin'  deterinining  tlie  Secretary's  patent,  as 
(■ffertually  ditti  iiiiiic  the  Governor's,  and  dissolve  the 
iissembly,  as  the  (iovci  iini' s  can.  Secondly,  lU'ithcr 
does  it  determine  any  onifc  jicld  by  the  sc;\l  ol"  this 
pro\  iiicc  :  for  oatt'iits  under  the  seal  licrc  arc  dl'trn 
given  Ity  the  King'.-  especial  direct i'Wis  and  (■oiniiiaii(ls, 
in  which  the  (ioveriior  is  always  iiiinisterial ,  and  |ia- 
tentri  under  the  great  seal   here  aw   as   elVeetual  Un  all 


OP  THE  COLONIAL  CONSTITUTIONS.        255 

the  purposes  intended  by  them,  as  if  they  had  been  un- 
der the  great  seal  of  England,  being  derived  from  the 
san.e  anthonty,  viz :  the  King;  for  what  he  does   by 
another  is  of  equal  validity  as  if  done  by  himself,  and 
onvto  be  set  aside  the  ,-    .ne  way;    therefore,  offices 
H-k  under  the    oal  of  this  province  are  no  more  voided 
by  the  determination  of  the  Governor's  patent  than  if 
the  same  offices  had   been   held  under   the  great  seal  of 
Y-;^-     Thirdly,  if  the  determination  of  a' Gove::!;! 
patent  has  the  same  effects   with  respect  to  oifices,  &c 
here,  as  the  demise  of  a  King,  such  effect  must  be  ;cca- 
Moned  either,  1st,   by  the  nature  of  the  thing,  or  2dly 
hy  the  express  words  of  the  patent  to  the  new  Governor 
or  some  other  patent,  signifying  such  to  be  His  Majesty's 
pleasure.  "^      ■^ 

First,  if,  from  the  nature  of  the  thing,  (viz  :    that, 
"Pon  the  determining  of  a  derivative  power,  all  office 
-ome  void,  that  are  held  by  patents  or  commissions 
est.Hl  by  the  person  or  persons  exercising  such  deriva- 
tive power.)  then  .lie  present  Governoi's  patent  will  be- 
came void  upon  the  Kings  return  into  England  and 
i-r  any   h.ng  we  km.w  may  be  vo.d  at  present,  which  it 
IS  nd.culous  to  suppose,  and  of  dangerous  consequence 
'"the  public  administrati,m  and  peace   to  maintain  :  it 
I.  therefore  very  clear  no  such  effect  can  arise  from  the 
-■^ture  of  the  thing;  and  it  will   be  as  evident  to  any 
l-.ly  that  rea.ls   the  Governor's  patent,  that  no  such  di- 
;y<t.on  IS  contained  in  the  words  of  that  patent,  nor  are 
.en.anv  other  letters  i^itent,  signifying  such  to  Ik.  His 
iMajesty  s  j)l(as,ire. 

"'  "'»•"-  the  .letermination  of  a  (Jovernor's  pak'nt 
'1-^  not  affi-ct  this  province  in  such  manner  as  the  de- 
""■•>•■  "I  a  King   would  do,  in  the  determining  of  officer 


'  ■  Jl 


11  f. 


256 


OPINIONS  OF  EMINENT  LAWYERS. 


and  commissicns,  which  is  the  less  thing, — a  foriiori.  it 
cannot  aftect  it  so  as  to  make  a  judicial  act  not  to  oper- 
ate, i.  e.  to  dissolve  an  Assembly,  Avhich  is  the  greater. 
I  shall,  therefore,  lay  it  down  as  a  true  jwsition  in  law : 
that  every  judicial  act  of  record  remains,  iiotwithstand- 
ing  the  death  or  removal  of  a  Governor,  or  determhia- 
tion  of  the  powers  by  which  he  acts ;  an  As^  en\bly, 
chose  by  virtue  of  the  King's  writs,  and  the  returns 
made  into  the  chancery  or  oftice  here,  is  a  judicial  fi^^t 
of  record  ;  therefore,  an  Assembly  so  chose,  &c.,  remains, 
notwithstiuiding  the  determination  of  the  Cfovernor's 
patent.     4  K  P. 

When  any  question  ari  ^es  here,  concerning  a  Gover- 
nor, or  assembly,  many  are  ready  to  ask  what  the 
King  or  parliament  of  f]iigland  does  on  a  like  occasion  : 
vainl_y  thinking,  that  w'aatever  is  done  by  a  King  or 
parliament,  is  tit  to  ])e  drawn  into  exam |)le  for  this  ]diice. 
However  extensive  that  notion  may  be  in  America,  it 
is  rather  to  lie  laughed  at  than  argued  with  ;  not  but 
that  the  wi.sdom  and  regularity  of  a  British  parliament 
are  very  lit  patterns,  so  far  ns  they  are  imitable  by  us. 
But,  a.s  my  Lord  Vaugl  an  observes,  under  title  process 
into  Wales,  when  the  (( lestion  is  of  the  jr.ri.-dictiou  in 
a  dominion  or  territ<)ry  belonging  to  England,  the  way 
to  determine  it,  is  to  examine  the  law  in  dominions,  the 
same,  in  spec!*',  with  that  concerning  which  the  cpies- 
ti(m  is.  So  "the  fpicstion  being  here  concerning  mu  as- 
send)ly,  and  whether  it  is  di.ssohed  )»y  tlie  determining 
the  powL'-s  of  a  Governo(*'.<^  conunission,  the  u)i\  (o  dc 
ternune  it  is,  not  to  examine  how  fir  a  King  jukI  (iov- 
ernor,  or  a  j>ariiament  of  England,  iuid  an  iis-en«bly  of 
this  pro'.ince,  are  alike,  I)ut  Ui  inrpiire  ii  to  the  |inu'tice 
of  dependent  donnnlons.  like  oiirseht-s,  such  as  hi'l.ind. 


OP  THE  COLOWrxt,  COITOTlTUTIOJVS.  257 

and  the  plantations;  and  if  we  find  the  determination 
of  he  commissions  in  those  places  never  was  thouWit 
o  dissolve  a  parliament  or  assembly,  we  have  no  reason 
to  conclude  it  will  do  so  here :  in  Ireland  there  was  but 
one  parliament  chosen,  which  continued  al^ or  the  .Great- 
est part  of  the  Queen's  reign,  under  a  succession  o?  sev- 
oral  deputies. 

In  Barbadoes    where   by  a  law  of   that  isl.nd  their 
Assemblies  are  annual,  I  am  informed  it  has  been  very 
common  to  act  with  an  assembly  cliosen  in  the  time  of 
a  former  Governor:  it  has  been  done  in  Vir-inia    in 
Maryland  while  under  the  King,  in  Pennsvlvania,  ^ay 
It  has  been  done  in  this  province,  for  Colonel  Fletcher 
(.H-,stly  styled  the  gre-it  patron  of  the  Church  here  )  met 
and  acted  with    an     assembly  summoned    by  Colonel 
Houghter.     And    upon    debate  of    this   very'  question 
winch  was  started  by  some  of  the  members  of  the  then' 
assem},ly,  ,t  was  the  opinion  of  himself  and  council   „^. 
mine  contradieenM  and  of  t'^e  Assembly,   thi-t  it  was  a 
legal  assembly,  as  you  will   see   by  tb  •    i.mrn.ds,  if  "you 
please  to  inspect  them.     These  journals  were  sent  home 
and  I  am  apt  t.,  l>elieve  the  opinion   and  ])nutice  were 
approved  of,  otherwise  the  Governor  woul.j  have  been 
reprimanded,  and  the  suecee.ling  Governors  lo.bid  the 
•loMig  so,   nothing   like  which  has  been    done;  mu.I  the 
Karl  of  Ballamont,  who  succeeded  him,  was  so  11,,-  Ji„ui 
thinking  that  the  as.sembly   was  dissolved   bv  his  p„|,. 
lisbiug  the  King's  patent,  that  (if  1  am  righth    i„j;,,,n- 
•  ■-l)  he  published  a  prcM-laniation    to  dissolve  the  Assem- 
bly rhosen  in  the  time  of  Colonel    Kietclier.      So  (bat 
tb.'  opini.m  of  an  Assembly's  dissolution,  bv  t.ie  publisli- 
i"g  a  new  patient,  is  but   of  l,,te  date.  au.M  am  hu:riblv 
«>f  opinion,  without  any  f(mndafiv)n  in  law. 


U 


Lewi.--  AIohkis. 


258 


OPINIONS  OF  EMINENT  LAWYERS. 


M 


(11.)  T/ie  opinion  of  Mr.  Hamilton,  an  eminent  law- 
yer of  Pennsylvania,  on  the  same  -nihject. 
[Coy.y  of  a  letter  to  Dr.  Johnston,  one  of  the   council 

for  the  proyince  of  Ne^v  York,  from  Mr.  Hamilton,  an 

eminent  lawyer,  at  Philadelphia.] 

Sir ; 

At  your  request  (though  in  much  haste,  this  being 
the  time  of  our  Supreme  Court),  I  have  considered  how 
far  it  is  agreeable  to  law,  for  a  succeeding  Governor  to 
meet  and  act  with  an  assembly  called  by  his  pi'edeces- 
sor ;  and,  upon  the  whole,  it  appears  to  be  thus :  First, 
I  find  it  io  be  thf  practice  of  several  of  the  govern- 
ments under  the  Crown,  to  meet  the  same  assemblies 
called  by  their  predecessor.  I  also  find  the  justices  and 
judges,  appoin*^ed  by  the  former  Governor,  continue  to 
act  by  the  same  connnissioa  under  a  succeeding  Gover- 
nor, and  that  their  commissions  are  never  renewed,  but 
when  the  Governor  thinks  fit  to  make  some  change  in 
the  magistracy.  Tliirdly,  that  no  military  .officer  re- 
ceives any  new  commission  from  a  succeeding  Governor. 
Tliese  things  I  know  to  be  factw ;  and  the  reason  then 
must  be  because  the  writs  and  commissions  Ijy  which 
the  persons  are  called  or  coinn  issionated,  are  the  King's 
writs  and  connnissions,  and  not  the  Governor's  that 
grants  them.  These  considerations,  witli  the  practice 
of  Irelan<l,  who  had  but  one  new  ])arliament  ni  the 
Queen's  time,  and  had  six  several  Lord.s-Lieutenants, 
besides  ten  several  Lords-Justices,  is  full  proof  to  me 
that  the  test  of  a  writ  of  summons  for  holding  an  iis- 
senil)ly,  l)eing  changed,  does  not  by  any  means  dis.solve 
the  assembly.  As  t<)  the  objection  of  the  parliament  of 
Ireland  being  sunmioned  by  writ  under  the  great  seal  ot 
England,  it   is  a  mistake :  for  both  history  a.'.J  law  do 


OF  THE  COLONIAL  CONSTITUTIONS.  259 

agree,  that  the  parliament  is  summoned  or  called  by  the 
Lord-Lieutenant,  under  the  great  seal  of  Ireland,  who 
indeed  cannot  call  a  parliament  until  he  has  obtained 
licence  from  the  King  fo-  so  doia^  under  the  great  seal 
of  England. 

Now,  a  Governor  in  the  plantations  is  not  restrained 
or  tied  up,  for  his  commission  givos  him  a  yowex  gene- 
rally to  do  those  things,  which,  in  their  nature,  are  to 
be  done  by  a  Lord-Lieutenant,  by  '.pecial  licence.  See 
the  manner  of  calling  a  parliament  in  Ireland,  (upon  a 
question  which  arose  about  the  exposition  o.'  Toyning 
act,  as  it  is  called,)  resolved  by  ihe  two  chief  i.>tices, 
the  chief  Baron  and  the  King's  learned  comisel,"  in  4th 
Coke's  Institutes,  fol.  353. 

Ileylin,  in  his  Cosmography,  says  the  Lord-Li eutv^n- 
ant  summons  a  parlijxraent  by  the  King's  api)oi,ilniont. 

Collier's  Historical  Dictionary  says  the  Loid-Liouten- 
ant  calls  and  holds  the  parliament  of  Ireland  by  the 
King's  licence. 

The  present  state  of  Great  Britain,  pul)lished  in  the 
year  1718,  the  fourth  edition,  title  Ireland,  page  58, 
says  the  parliament  m  at  the  King  of  England's  ple.isur  ' 
called  by  the  Lord-Lien fenant,  or  deputy,  and  by  him 
dissolved.  That  the  test  of  the  writ  is  in  the  Lord- 
Lieutenant's  name,  appears  from  the  historv  of  that 
country  and  the  book  called  the  History  of  the  Reduc- 
tion of  Ireland, 

That  it  uiust  be  so,  appears  from  the  form  of  the  sum- 
mons made  by  a  guardian  of  England  in  the  Kings  al)- 
8encc,  for  calling  a  i)arliament,  4th  Coke's  Institutes, 
lol.  (;,  at  the  l<M)t  of  the  page. 

Th....,  if  it  bo  s.,,  that  the  test  must  b..  in  the  name  ..f 
tlie  ollicer  who  calls  the  parliament,  as   und..ubtedly  it 


rti'l 


■El 


"W 


260 


OPINIONS    OF  EMINENT    LAWYERS. 


i 


is,  see  how  alwurd  it  is  to  sa^  that  the  determining  that 
officer'.^  commission,  can  dissolve  the  parliament,  when 
the  contrary  has  always  been  practised. 

In  the  first  year  of  Queen  Anne,  the  Duke  of  Ormond 
Avas  made  Lord-Lieutenant  in  the  room  of  the  Earl  of 
llochester. 

Li  Fel)ruary,  1702-3,  he  meets  the  same  Parliament 
that  was  in  being,  and  acts  with  them.  Ormond  con- 
tinued Lord-Lieutenant  till  the  7th  of  April,  1707,  and 
then  Pembrooke  was  appointed  in  his  room:  he  arrives 
at  Duldin  the  24tli,  and  on  the  7th  of  the  next  month, 
meets  the  parliament  then  in  being. 

(>ii  the  29th  of  November,  he  prorogued  the  parlia- 
ment to  the  Gth  of  May  next,  and  returns  to  Britain. 
In  Octolter,  lTf>'<,  the  Lord  Wharton  is  made  Lord-Lieu- 
tenant, in  the  .  .m  of  Pembrooke ;  and  April  the  2l8t, 
arrives  at  Dul)lin,  and  then  prorogues  the  parliament, 
then  in  being,  to  the  5th  of  May  following,  at  which  day 
it  meets  ;  and  it  appears  in  the  speech  of  the  commons, 
that  tliat  parliaiuent  had  held  many  sessions  before,  so 
it  was  not  one  of  his  Cidling.  On  the  30th  of  August, 
170'.>,  the  patliament  is  prorogued  to  the  13th  of  March. 
On  the  i;)th  of  May,  the  Lord-Lieutenant,  who  had  been 
over  in  Britain,  returns,  meets  the  same  parliament  and 
orders  the  clioosing  of  a  new  speaker,  in  nxjin  of  Allen 
Broderick,  wlio  was  call'}d  up  to  the  house  of  Lords  as 
chief  justice  of  the  King's  Bench  in  Ireland,  to  give  his 
a.ssistance  there. 

August  the  28th,  the  parliament  was  prorogued  to 
the  8th  of  March  next,  and  the  Lord-Lieutenant  gocfl 
for  Britain.  July,  1711,  the  Duke  of  Ormond  appoint- 
ed Lonl-I^ifutenant  and  arrives  at  Dublin,  and  meets  the 
Hiii.ie    parlianifut   the   Sth  of  July.     NovemlxT,     1711, 


OF  THE  COLONIAL  CONSTITUTIONS,  261 

parliament  prorogued  to  the  2d  of  September,  1712  and 
goes  for  England.  ' 

This  is  0  history  of  matters  of  fjict,  hy  which  it  ap- 
pear.«  that  the  removal  of  a  Lord-Lieutenant  or  Gover- 
nor who  tests  a  writ  of  summons  for  a  parliament  or  an 
as.«embly  in  his  own  name,  neither  does  nor  ought  to 
dissolve  that  parliament,  or  assembly. 

These  are  the  grounds  of  my  judgment  for  the  legali- 
ty of  the  present  assembly  meeting  the  Governor.  I 
have  spent  as  much  time  as  my  private  aflairs  would 
permit,  m  taking  the  opinion  of  the  men  of  the  best 
judgment  here,  (Philadelphia,)  and  I  have  met  with 
none  that  differ  from  me  in  judgment. 

But  how  far  it  may  be  convenient  for  the  Governor- 
to  take  these  measures,  though  lawful,  I  cannot  say ;  nor 
can  I  see  what  can  be  objected  against  his  so  doing,  un- 
less the  people  say  that  it  ia  striking  at  tboir  privilege, 
in  denying  them  the  opportunity  of  a  new  choice,  and 
this  is  fully  answered  by  the  arguments  in  favor  of  the 
septennial  bill. 

beptember  27,  1720. 


(12.)  Mr.  Fane\H  ajyinioti  on  the  nature  of  the  hond  to 
he  given  hy  the  Governor.^  of  Proprietary  Ooremment-^, 
f-yr  ofmrving  tlie  Act-s  of  Trade. 

To  the  Right  Hon.,  the   Lords  Commissioners  for  Trade 
and  Plantations. 

My  Lords  ; 

In  obedience  to  your  Lordships'  cmimands,  signified 

to  mo  by  Mr.  PoppIVs  letter  of  the  14th  of  this  instant, 

wherein  your  Lordships  are  pleased  to  desire  iny  opinion 


i>': 


*   f 
1 

1  ^■. 


262 


OPINIONS  OP  EMINENT  LAWYERS. 


in  point  of  law  whether  in  obligations  which  are  made 
to  the  King's  Majesty,  the  word  exceutorihvs,  or  sxcccs^or^ 
ibuSj  ought  to  be  made  use  of.  The  act  of  the  oo<l  of 
Henr}'  VIII.  chap.,  39,  expressly  directs  the  word  excc- 
utoribus  to  be  used  in  all  obligations  to  the  King,  con- 
sidering him  in  his  natural  capacity ;  and  a  punish- 
ment of  imprisonment  is  by  the  same  act  inflicted  upon 
such  persons  as  shall  make,  or  take,  such  o])ligati()ns, 
unless  it  is  in  the  terms  prescribed  by  that  act.  There- 
fore, I  am  humbly  of  opinion,  since  this  law  has  so  pai-- 
ticularly  directed  the  manner  of  taking  it,  the  King'  re- 
membrancer, who  is  the  proper  person  for  seeing  it  done 
in  the  most  regular  and  legal  method,  cannot  safely  act 
in  this  matter,  but  agreeably  with  this  law.  But  sup- 
posing this  act  w^as  not  in  force,  I  apprehend  a  bond. 
the  conditions  of  which  are  of  the  same  nature  with 
Major  Gordon's,  should  more  properly  be  taken  to  the 

King,  his  heirs,  or  successors. 

Fran.  Fane. 
Feb  18,  172G-7. 

(13.)  The  opinion  of  the  Attoi-rey  and  SoUcifor- 
Oeneral,  Trevor  ami  Hawles,  on  tli.':  trial  of  a  Lieuten- 
ant-Go'i:rii(ir.  and  other  legal  topics. 

To  the  Right  Honorable  the  Lords  Commissioners  for 
Trade  and  Plantations. 

In  answer  to  your  Lord.ships'  (juaM-ies,  signified  to  us 
by  Mr.  Popple,  the  30th  of  April  last,  relating  to  offen- 
ces committed  b_y  Captain  Norton,  and  against  the  act 
for  regulating  abuses  in  the  plantation  trade:  we  arc  o|' 
opinion    that  for   such    olleiice  or    wilful    neglect .    llie 


>>V  THE  COLONIAL  CONST  ITUTIONS. 


263 


Lieutenant-Governor,  Captain  Norton,  may  be  indicted 
.Hid  tried  in  the  court  of  ^he  King's  Bench,  by  virtue  of 
the  act  for  punishing  governors  of  phintations  for  offen- 
ces conimitted  by  them  in  the  plantations  ;  but  we 
doubt  whether  he  AviU  incur  the  penalty  of  one  thousand 
pounds  by  the  act,  made  the  7th  and  8th  of  the  King, 
lor  I'egulating  abuses  in  the  plantjition  trade  ;  for  the 
u-ords  of  the  act  extend  to  Governors  and  Comn^anders- 
.n-chief,and  is  given  only  for  the  offence  of  not  taking 
the  oaths,  or  putting  the  acts  in  execution  ;  but  he 
will  be  finable  at  the  discretion  of  the  court. 

Thos.  Trevor. 
•'""'^i'  I'^J'  Jo.  Hawles. 

^S'erom/.     Of  the  Council. 

(1.)  The  ojmnonofikc  Attorney  ami  SAicilor-Gcneral, 
Marriuj  and  Lloyd,  in   1755.  on  the  question  ichcther  tfi^ 
Governor  and  Council  have  tlie  power  of  maJdng  lairs. 
To  the  Right  Honorable    the   Lords    Commissioners  for 

Trade  and  Plantations. 

May  it  please  your  Lordships  ; 
Pursuant  to  your  Lordships'  desire,  signified  to  us  by 
Mr.  Hill,  in  his  letter  of  the  31st  of  March  last,  setting 
forth  that  a  doubt  having  arisen  whether  the  Governor 
and   Council  of  His  Majesty's  province  of  Nova  Scotia 
liave  a  po    er  of  enacting  laws  within  the  said  province, 
mid     .fonatl.an    Belchier,  Esq.   having    transmitted    t^ 
your    Lordships  his  observations    thereupon,   enclosing 
to  us  a  ;M)py  of  the  .said  observations,  together  with  cop- 
ies of  several  clauses  in  the  com..iission  and  instructions 
of  the   said  Governor  of  that  province  referred  to,  (all 
wiiieh  are  herewith  returned),  and  desiring  our  opinion 


264 


OPINKVNS'  OP  BMINEJCT  LAWTEHJ!. 


ivhethor  the  said  (rovernor  .md  council  have,  or  have 
not,  iv  power  to  enact  laws  for  the  public  peace,  welfi're 
and  ji.Kxl  jj;overnnieut  of  the  said  province  and  the  \,eo- 
ple  and  inlialjl^^ants  thereof :  we  have  Uiken  the  said  ob- 
-oivations  ami  clauses  into  our  consideration,  and  are 
huniblv  of  opinion  that  the  Governor  and  council  ahme 
are  not  authorized  by  Ilis  Majesty  to  make  laws.  Till 
there  can  be  an  assembly,  His  iMajesty  hits  ordered  the 
government  of  tlie  intiint  colony  t«  be  pmsuant  to  his 
conin)ission  and  instiiictions,  and  sucli  further  directions 
as  he  shdidd  give  under  his  sign  manual  or  by  order  in 
council. 

W.    MVRRAY. 

April  2t>,  17')').  Rhii.  Li.oyd. 


is 


(2.)  T/n  opinion  of  the  Attoruey-Oevpml  Piuttt,  on 
thf  .^(-nnil  poinrs  of  the  Council  and  A-s-nrnhh/  of 
MiinihiiiiJ . 

As  fo  the  nomination  of  officers  by  the  lower 
house. 

In  iiiv  opiiiiou  the  sole  nomination  of  those  commis- 
sioners who  are  new  othcers,  appointecl  l»y  tins  hill,  be- 
longs neither  to  the  pmprietary,  nor  the  lower  hou.se; 
bet,  like  all  "thcr  regidations,  nnist  be  aAsenti*d  to  by 
both,  but  can  l-e  clniiu-d  by  n.-ith«  r.  The  proprietary's 
charier  entitles  him  to  nominate  all  constitutional  olli- 
cers  aufl  all  others  which  h\  the  laws  are  not  otherwise 
provided  for;  b\it  I  <lo  not  conceiv*'  my  Lord  Haltimore 
has  any  .rigitial  right  t<-,  nominate  new  ollieers,  appoint- 
ed  for  the  .v.rution  ol  a  new  law,  witliout  the  consent 
of  th.'  twr.  hoiiM  s,  nor,  on  t!ie  other  h;ind.  have  the  low 
er  house  am  such  in<iependent  authority  i  and,  there- 
fore. 1   think  the  upper  Ijous.-  are  right,  notwithstan.ling 


OF  Tilt:  COLONIAL  CONSTITUTIONS.  2Go 

tlii.s  claim  in  which  they  mi^rht  ),c  .suppnrto.l  hy  the 
I'l-pnetary,  because  it  is  unreasonnhh- r„r  „„e  branch 
ol  the  Ic-ishiture  to  asm.ine  a  power  ,.1  taxing  the  other 
by  ofhc(  rs  (,f  their  simple  appointment. 

As  to  the  insndicieocy  ..f  th..  allowance  of  the   com- 
missioners ol'tlie  lonn  oflice. 

My  Lonl  .should  not  me.MIe  with  this  .,Mostion,  which 
IS  proper  to  b..  .Iis-.nss..,j  mm.I  settled    bv  the  two  houses 
as  It  ..HH^enis  only  the  .p.m.tnni  ul'  ailowMii.v  Ibr    the' 
'><f->-s.  and  dn..s  not  encroach  upon  .ny  of  th..  proprie- 
tary's ri;;hts.  '  11- 

As  t..  the  .luties  rccpdred  from  I.ord  IJaK In. ore's  pri- 
vate ollicers,  his  agent  and  receiver. 

Here  my  Lonl  ought  to  interpose,  for  it  is  a  great  in- 
'lignity  to  ,  ompel  his  Lnrdship's  agc.„ts  into  I  p„hli,. 
servic,.  without  making  them  a  liberal  allowance  and 
cniupcMi-^ation  lor  their  tnMible. 

As  to  that  re.piired  frcm  sheiins. 

This  my    Lonl    will    leavr   to   be  debated    I.        lie  two 
liou>es. 

.\-  to  the  power  of  the  upper  h.Mise  I,   evamine  claims 
.iihI  accounts. 

The  upper  hou.^e  are  right  in  ma'iug  a  staiul  |o  this 
'  l.nise  in  the  bill,  and  should  take  .are  how  thev  „.lmit 
■•ii'inMchmentsonbis  kii.d,  uJM-u  Ih.y  ai,' .support.-.!  I.y 
argiuu.'uts  drawn  Ir-.m  ihe  e\.-r<is<.  ot  tb,.  Jik.'  rights  Jn 
111.'  11. Mis.-  ..rComuH.us  h.  .V.  'rii,.  ('..ustitoHnn-  nf  the 
t\\u..,.,s..rubiic<  .jiir.-r.  bmdaiu.'ulally,  iu  uiauy  lespcl.; 
cur  llouM- ..f  Commons  slaiuls  up..ii  its  oun  l.i\v<,  the 
h'.r  u,,rli,uo  .  wlier.'.ax  a-,  uibli.'s  in  th.-  colonies  aiv  r.  -- 
iilatc!  by  tlirir  i,-|„Mliv.-  .iiarl.Ms,  usii^.s  ,uid  th,. 
'■'"I'linu    law  ,.|-    KuulaiM.   an.l    will    u.\  cr  be  ..dh-u  c.j  lo 

:i--nm.'     tll,,^..     prisil.'gc-:     vslivb     (b,      Mmu f    {    nmuu.u^ 


•ii 


1 


266 


OPINIONS    OP  EMINENT    LAWYERS. 


It:  i_ 

%,  J, 


are  entitled  to  justly  liere,  upon  principles  that  neither 
can,  nor  must  be  ajjplied  to  the  assemblies  of  the  colonies. 

As  to  the  narrowness  of  the  exemption  of  persons  to 
be  assessors. 

My  Lord  has  nothing  to  do  with  this. 

Ah  to  the  doul)le  tax  on  nonjurors. 

My  Lord  would  do  rij^ht  to  ioin  with  the  upper  house 
in  opi)osing  this  dou1»le  tax,  because  it  is  a  breach  of 
pjiblic  faith  and  tends  to  subvert  the  very  foundation  of 
the  Maryland  ('oustitution,  and  can  be  excused  by  no- 
thin,n-  but  a  well-j;roMnded  jealousy  of  dangerous  prac- 
tices and  disalVeciiou  in  tlu'  papists. 

As  to  the  clauses  enaliling  del)tors  and  tenants  to 
retain. 

This  -s  very  absurd,    but  my  T.ord  need  not  meddle 

with  it. 

.\s  to  the  tax  on  non-resid(>uts  and  im|H)rts. 

The  u|)i)cr  huusf  are  clearly  right  in  that  jwirt  of  the 
objection  which  relates  to  Hritisli  miTchandise  iini>orted; 
for  1  am  -itisficd  thr  iiiotbcr  i-omitry  will  never  eudnre 
such  au  iiii|io-.t  upon  their  trade.  The  province  may 
\>  the  -ame  rule  prohibit  the  iM\portatioii,  as  well  as 
thev  iiia\  tax  the  inerehaiidise  imported;  and  it  semns 
to  be  a  very  im\van.iutal)h'  atfemi»t,  to  make  the  Eng- 
lish importer  of  ixoods  carried  to  Maryland  in  the  way 
of  trade,  pav  a  I  .\  foi'  the  (lefenee  oftliat  province,  !or 
no  other  eoiisjil,. ration  Imt  the  liberty  ot"  trailing  there 
to  which  thc\  ha\e  an  original  I'ight,  which  cannot  l)c 
inv  ided,  ilimiiii^^hed,  or  even  icgulated,  by  any  thing 
this  pro\  iiice  <'aii  ever  do, 

A.-,  to  the  tax  o!)  tenants  i'-r  life 

My  L'.rd  will  le.uc  thl<  to  be  .^'tllcd  b  the  two 
liouses. 


OP  THE  COLONIAL    COr^fSTITUTIONS.  267 

As  to  the  tiix  on  uncultivated  lands. 

ThiH  seems  to  me  a  \ery  n„rea.sonable  tax,  and  ought 
to  Uo  resisted  by  the  proprietory,  because  it  seems  prin- 
cipality to  be  h'velled  at  his  estate. 

As  to  the  tax  on  plate  and  ready  money. 

My  Lord  iias  nothing  to  do  with  this. 

A-<  U)  the  tax  on  the  Governor. 

This  is  rather  an  uncivil,  than  unjust  tax  ;  and  there- 
fore, the  upper  house  would  do  well  to  oppose  !t  as  far 
as  tiiey  may  in  reason. 

Having  given  my  sense  on  each  of  the  .,l,jections    so 
<ar  as  they  havo  been  taken  up  and  maintained  by 'the 
"I'i'^'r  house,  in  the  margin  of  that  part  of  the  case  I 
.-hall  only  add  here  a  general  pi,.,.o  of  advice  to  Lo'rd 
Baltimore,  that  in  this  (lisi,osition  of  the  lower  house  to 
assume  to  themselves  any  privilege  which   (be  Kn-dish 
House    of  Commons  en.j..y  here,  his  Lordship  sho.dd  re- 
sist all  such  attempts  .vhere  theyare  uuivasonai.Ie   with 
'•nuness,  and  should  never  all.nv  anv  .■n.roachments  to 
Ix'cstnbhshedonthe   weight   of  thnt   argument  sin.dy  • 
for  I  am  satisfied  neither  the  Crown,  no,- th,.  pailianu-nt' 
will  ever  suffer   those  Assemblies    to  ernt    tlumselves 
'»to  the  power,  and    authority,  of  the   British  House  of 
Connuons. 

C.  Thatt. 


:■?  ■ 


208 


OPlNlOi^rf  OP  EMINENT  LAWYERS. 


(3.)  7'/i<.  oju'/ihii  of  the  Aftoniiij  and  Solicifi>r-(  hill - 
Till,  Jhiikil  and  Yurie,  how  far  the  pnxlamalion  of 
D^arti'd  laiv  .^m.-^pends  the  finu'tiona  1/  thr^  Coiimil. 

To  the  IJij^lit    Iloiiorahle  tho  Lords  Coininissioner.s  lor 
Trade  and  Plantations. 

May  it  ])k'as('  your  Lordships; 
Ti'  inirs.iaure   of  your   Lordships'  commands,  sij^nifiod 
to  us  1)V  Mr.  I'ownall,  in  his  k-ttor  of  the  22d  instant, 
jicciuaintinj;  us  that  yoiu-  lordships  had  recoivod  two  let- 
ters   from    Henry    Moore  Ks(p,  Lieutenant   (Governor  of 
Jamaiea,  infoi-niinf;  your  Lordships  tliat  he  had,  in  eon- 
seiiuenee  of  adviet-s  wliirh  l.e  hail  reci'ived  i>f  an  intend- 
ed invasion  of  that  ishuid,  eau-<ed  martial  law  to  he  pro- 
claimed;   and   that    His  Majest \  s    eouneil     upon  Inin;! 
summomd  t«i  meet  in  Iheir  h     '^lalive  eapaiit\,  had  re- 
fused til  iln  am   husine-^s,  alh'^ini;   that  neithe.-  they  nov 
the  as-(,'ml>l,\    had   any  rijjiht    to    sit  or  transaet  husiness 
after  the  imKlii  atimi  of  mai'tial  law  ;  and  also  tiansmit- 
tirigto  us  cojiii's  of  llie  Lirulvnant-dovei-uor's  letters  and 
two    other    papers,  containing'    the   reasons  assiii;ncd  hy 
the  ■     MUiil  I'll-  tl:eii- npiiiii'U,  and  tiieiv  answeis  tn  si've- 
ral  i|i. rations   iirdpnunded    tn   them   liy    the   Lieutenaut- 
(ii)\  eiiior.  and  desirim:  us  to  take  the  same  iiiti>  our  eoii- 
sideialii'U    ami    report    to   \  our    liHiilships   our    ooiinon 
thereon:    we    h:i\e    taken  tliev;niie    into   nui'    eunsidera- 
(ioii,  and  are  I'f  niiiuiuu  thai  theix"  is   no    louudatmu    tnr 
the  j.otinn   of   the  emmiil    thai  tii'-  |)ioehiimiui:  nf  :;iiii- 
ti.il  law  >n~|>enil~  tile  execution  of  the  le^ishiti\  e  autliDl- 
itv    wliii'li  max,  and  ouiiht  ti>  continue  t"  act  as  \in\)i  as 
the    luiMii-  exim'iicies   rcipiire. 

Niif  do   we   ap|trehen  1  that    hy  su(di    proclamation  of 


PF  THE  COLONIAL  C0\-;t1TUTI0NS. 


269 


iHiutuil  la.w  the  ordinary  course  of  luw  and  justice  is  sus- 
pended ..r  sto,)ped  any  furtlier  than  i.  ahsolutoly  neces- 
■suv  to  answer  the  then  military  service  of  the  puhlic 
and  the  exigencies  of  the  province. 

T         >^    ,  ItoiiT.  JIknlev. 

'liin.  28,  17;)7.  (.   v^ 

'  '"  b.    lOKKE. 

'Hun/.     Of  tlie   nqyresentative  AmmlJii. 
(1.)    Theopiuum  of  the  AUor,u,j.<i„uruJ  li.nnnonJ 

Asm./,/,.  a»d  on  the  rUjht  .jinn  h,,  tlu:  hl.,j  to  ' par- 
lir„b,r  .n-.trirt,,  to  choose  ddejat,.^. 

'J '•  <l'e  IJi^ht  Hon,  the  Lords  Connnissione-s  for  Trade 
•■"id  I'luntations. 

M.iv  it  please  your  Lordships; 
In   hnnd.le  ol.edience   t«  your   LonNhips'  <.onnnands 
-.n-hed    ^'.nehyMr.  ropp,o,hy.hish.t,..,..,ated    the 
'"' -'".v  ot  June,   1722,  that  I  should   s.,,,!  vonr  Lord- 

^1"|-  M.y  opinion  whether  Hi.  Ah,..s,v  ,nav'le.aiiv  al- 
';■'■  "'"  '""^'^''"^  constitution  of  (1k>  ass,.,„Mv  in  New 
•''■'•^<\v,  m   such  manner  as  Mr.  Hurnct,    His   Majesty's 

'■'-•■'■'""•. 'I'"- says  in  his  letter  would  he  for  His  Mlij- 
"-<.vs   -rvH-e.  a.  1    in   what  manner   i,    nd-d.t   he  n.cit 

';;"'"'''^    •'"•'- (fnr  whi.h  purpo...    ,1.„   ...,,a..tof   Mr 

""";";':■""'•""•"'- p.in(..ds, .h  to .i..., ...,„,,, 

;;'  ^^':'';^^'''-"'"^'-'-inof  hMn.,ru..,i.,„and 
;'"•'":"■"-'— Hha.  col,, V,  were  s..n,  ,..„,., ,  „, 

■-■-"h  sent  l.a..kt.,  your  lordship.),    I    h.ve    readover 
•■-■-'-tract  ofMr.nurnetfsh.,„.r,   hi.  sp..,.,,  and 

I  MC    Met      o)       a'^«(M!Hll\-     tjlllii 1      1  !  . 

.'    »MU.i>    Mipp...„.d    lo    h,.,v..  Imvu   passed    in 
''"III  l'i'\  r  ac(>  s  tiuic     in    V<.ii-    I  ... 

'"'   '"••    '"'•    '•^'Kulatingthe.iuulilicatiou  of  represenbi- 


270 


OPINIONS  OF  EMINENT  LAWYERS. 


tives,  to  serve    in  the  j^^neral  assembly,  in  the  |).;)viiice 
of  New  Jersey  ;"  and  considered  tliercijf. 

And  I  certify  your  lordships,  that  as  the  riv;ht  (.i'send- 
ing  representatives  to  the  assembly  un<l  the  (|u;ililica- 
tion  of  the  elector  and  elected,  for  any  tliinj;-  a].pviiriiit:; 
to  ine,  were  founded  originally  on  the  instructions  given 
by  the  Crown  to  the  Governor  of  New  Jersey,  and.  as  is 
observed  by  Mr.  Burnett,  have  already  received  altera- 
tion.s  by  different  instructions  given  in  Lord  Cornbury's 
time,  and  llic  election,  which  before  was  left  in  all  the 
freeholders  of  East  Jersey  and  West  Jersey,  rcsiicitive- 
ly,  and  fixed  in  the  method  ii^w  e-^t;.blislKMl.  as  tlmse 
new  instructions  given  in  lord  Cornbury's  time  made  tlie 
alteration  which  at  pn'sont  is  in  force,  1  am  of  (ipinion, 
by  the  same  reason,  by  new  instructions  to  l)e  give  n  by 
Ills  Majesty,  His  Majesty  may  lawfully  malce  Hi.b  cs- 
taldishments,  as  to  the  electing  and  seudiug  representa- 
tives to  the  as.seuibjy,  as  Mr.  Burnett  in  lii-^  Icttci'  de- 
sires;  and  indeed  the  n-ason  used  by  Mr.  Ibuiictt  in  fa- 
vor of  siicb  an  alteration,  seems  to  mc  to  liavc  a  great 
weight.  But  if  there  had  been  any  act  of  a-^-cmbly  i)a-s- 
cd  and  approved  by  His  Majesty,  whereby  tiie  iiiauner 
of  choosing  representatives  and  the  ([uaiifieatinus  iiad 
been  lixed,  tliat  would  have  had  a  difft-riMit  elfect  ;  but 
notliing  of  that  nature  appears  to  me,  I'or,  as  to  tlie  art 
said  lobe  j)as>t'(l  by  Lord  Lovelace,  it  beinu  an  act  ,n- 
trarv  to  tbe  in^tiaict  ions,  and  ue\cr  :ip|ii'o\(d  I'v  llie 
Crown,  seems  to  me  void,  wlii<  h  Mr.  I'mniett  li,i-  oli- 
served  ni  bis  letter.  Therefore,  upon  tlic  wliole  matter, 
I  apprehend  His  Majesty  may  in  jHiint  of  law  coin[)iy 
with  Mr  Burnetts  re(piest.  ill  cmpoweiing  tiie  new 
county  of  Hunterton  to  send  two  r»'preseiitati\  (■<.  and 
restrain  the  town  of  Salem  fnmi  bending  any    npiescn- 


OK  THE  COLONIM.  CONSTITUTIONS.  '       271 

tntiv(>s  for  tlio  ftiture,  if  it  shall  be  his  royal  pleasure  so 
to  do;  and  Iho  Tiianncr  whereby  it  may  be  don.-,  I  con- 
ceive, n.n.N-  be  by  Hi.s  Majesty  sending  his  Governor 
tlicre  new  instructions  for  that  purpose. 

KoB.  Raymond. 

Sept.   IG,  1723. 

(2.)  Th  opinion  of  He  Attorney  and  Solkitor-Gen- 
eral.  li.,,l,_rjn,d  ^[urn(J^  iq>o>i  the  is-sNauj  of  ivrits  fo?- 
(7uio.^-i/i,/  inic  rqyresentatlve-s. 

To  (he  Itio-ht  Honorable  the   Lords    Commissioners    of 
Trade  roid  Plantations. 

Miiy  ii  please  your  Lordsliips  ; 
In  pursuance  of  your  Lordships^  desire,  signified  to  us 
In  Mr.  IJdl,  in  his    letter^  of  the  10th  of  June  instant, 
vcpivsentin-  tiiat  your  Lordships  having  latelv  received 
H  letter  IVoni  William  Popple  E.q.  Ili.s  Majesty's  Gover- 
nor of  (bo  15.rnn.da  Islands,  dated  the  10th  of  February 
In^trclatiug.  among  other  things,   to  having,  upon  the 
a-,  nibly-s  ne.ulccting  to  meet  at  a  certain  time,  to  which 
tb.y    were  adjourned,   issued  writs  for  the  electing  new 
r.'piv.cnt.Kivc^,  without  the  dis.solution  of  the  assembly; 
■I'ld  trauHuittPig  an  extract  of  so  nuich  of  the  said   let- 
tor,  and  ..^pirsof  .s,,.!,   papers  therewith  transmitted,  as 
relate    (,,    \UU   pro.vc.liug ;    au-l    doiriug    our  opinion, 
wli  .lb   r  (b.'>,-,id  governor,  when  the  .^pcak.-r  and  all  the' 
members  of  (be  a.^scmbly   neglected   to  nu-et  at  the  time 
to  wbl.b    Ib.y  were  adjournal,  on  tb.-  oth  day  of  Feb- 
ruary,   in    (!„•    .Hcrning,    errhi    h>gally    i.^sue'urils    for 
choosing    new    n-pre^eutatives.    witlioii     di.s.solvjng  that 
a88ombly;  and.  wh.'tlu'r  the    representatives,  ehose  hv 


272 


OF  THK  COLONIAL  CONSTITUTIONS. 


virtue  of  such  writ^,  issued  as  aforesaid  by  the  Governor 
without  a  dissohitiun  of  the  assembly,  will  constitute  a 
legal  assembly,  so  as  to  make  the  proceeiings  of  such 
assembly  valitl :  wo  have  taken  the  said  papers  into  con- 
sideration, and  are  of  opinion,  that  n'-'ther  the  assembly 
was  dissolved,  nor  did  the  members  lose  their  scats  ])y 
their  not  meeting  at  twelve  o'clock  on  the  otli  of  Feb- 
ruary, 1747-8,  and  that  there  was  no  ground  for  the 
hasty  step  taken  in  issuing  new  writs  for  supplying  their 
places  :  and,  as  the  writs  were  issued,  not  u])(in  the 
foot  of  any  supposed  dissolution,  but  to  supply  vacancies 
that  had  not  happened,  we  are  of  opinion,  the  members 
so  returned  on  tliose  writs  were  unduly  chosen,  and 
cannot  coustit\itc  or  sit  as  a  legal  assemt)ly. 

D.  Ryder. 


June  18,  1748. 


W.  Ml  RRAY 


(3.)   The  opinion  of  the  same  lawi/ers,  ,  /i  the  right  of 
the  Crown  to  c„<i!'lt  jHivticxlar  towns  to  scud  <ld<'jntt-s  to 
the  A'S\-c//i/''i/. 
To  the  Kiglit  ]Ionoral>le   the   Lords   Commissioners  for 

Trade  and  Pbiiiiations. 

Mav  it  ])U'as('  your  Lordships  ; 
In  pursuance  to  your  Lordships'  desire,  signifu'd  to  u< 
by  Mr.  Hill,  in  bis  U'tter  of  the  22d  of  ,Tauu;iry.  l7  1li-7, 
representing  tli;it  _\..ur  Lordsliips  having  received  a  let- 
ter iVoni  Heiuiii  -  Wrntworth,  Ks<i.,  Hi-  Majest_\  s  ( lov- 
enior  of  N.'w  li;uni>bire.  in  wliiidi  he  iie.|ninnts  yonr 
T>onMr,p-  tliMi  the  isssembly  of  that  province  liave  re- 
fnsed  to  adinil  I  If  representatives  of  five  towns  iind  di- 
tri<-ts.  (to  vJii.ii  be  bad  issued  writ-;  in  lli<  Majesty's 
„;,,ne  t  .  eleel  and  send  nu-mbers  to  tbe  asse;iiMy  )  to 
sit  and  vote  in  the  choice  of  a  speaker,  and  tliat  Mr.  Hdl 


r 


I 


OF  THE  COLONIAL    CONSTITUTIONS. 


i.s  directed  by  your  Lordships  to  enclose  to  us  an  extract 
».lso  nmch  of  the  said  letter  as  relates  thereto,  as  also 
papers  therewith  transmitted,  containing  an  account  of 
the  assembly's  proceedings  in  this  affiiir,  and  a  coj.y  of 
the  twenty-eighth  article  of  His  Majesty's  instructions 
to   Mr.  Wentvvorth,    which    relates    to    the  settling  of 
townships,   (all   which  are   herewith  returned,)   and  to 
desire  our  opinion  concerning  this  matter,  and  what  may 
be  i)roper  for  His   Majesty  to   do  therein.       We   have 
taken  the  same  into  consideration,  and  are  of  opinion 
lliat  as  the  right  of  sending  representatives  to  the  as- 
sembly was  founded  originally  on  the  commissions  and 
instructions  given  by   the  Crown  to  the  Governors  of 
New  Hampshire,  His  Ma.jesty  lawfully  may  extend  the 
privilege  of  sending  representatives,  to  such  new  towns 
as  His  Majesty  shall  judge  to  be  in  all  respects  worthy 
thereof 

Wo  therefore  humbly  submit,  that  it  mav  be  advisa- 
ble for  His  Majesty  to  send  positive  instructions  to  the 
(.overno'-  to  diss.dvo  the  assembly  as  so„u  as  conveni- 
ently may  be,  and,  when  another  is  called,  to  send  writs 
to  the  said  towns  to  elect  representntives  and  support 
tile  lights  of  such  representatives  when  d 


losen. 


M 


UTJI 


1^,  irr 


I).  KvnER. 

\V.    Ml  URAV, 


(1.)   J//'.  l'(tii<\s  Opinion  ON  //h  s(I»I)  point. 
■f..tlieKight   H.morable.   the  Lords   Cminiissioners  U 
Tr.ide  and  IMantations. 

M.iy  it  ph'a.Mf  you,-  Lurd.^hips; 
l.M.bedi^.iuv  toyour  Lord>iiip.s    (.Mumands.   signified 
'"  ».e  by   Mr.   (Jellibrau.l,   desiring    my  opinion  nn    the 
matters  contained  in  the  extract  of  a  letter  from   Mr 
3H 


274 


(.PINIONS    OF  EMINENT    LAWYERS. 


Mm 


Woiitwditli.  His  Miijcsty's  (lovcnior  of  New  Hampshire, 
and  ill  scvx'i'al  dtlKM-  pjipovs  ivlatin;;-  to  ilie  ])ro('ir(liiii!;» 
of  tho  asM>iiil)ly  of  that  province.  I  havo  careliiUy  read 
over  the  said  cxtrMct  of  Mr.  Wontw-ortlfs  Uvtcr;  the 
clausi'  in  the  I'diuiiii^sidii  of  .lolm  ('iitfs,  K-i(j.,  dated  the 
8th  vliiy  ol  Septeiiilier.  in  the  ."list  year  of  Kini;-  CharU's 
tlie  Secniid.  j-eiiitiiit;'  tn  tl'  '  ciiUinu-  tlie  asseiiiMy  of  the 
.vaid  pr<)\inee'  the  eliiii^-e  in  the  eomniission  of  Samuel 
Allen.  !•]-((..  (ioNcnior  of  llie  said  province,  in  the  rei,2;n 
of  Kini;'  \\  illiaiii  and  <>neeii  Mary,  relatinir  to  th(>  siiifl 
asseiuhh-  :  llic  oSth  cuuise  ef  the  in.-^triietions  jiiveii  tt) 
the  said  (idxcrnor  Wentworth  in  the  year  17-11;  the 
copy  of  His  Maii'st\'s  writ  hy  which  the  assemhly  of 
the  said  province  \va>:  eoineiied,  a.id  the  sherilV's  return 
thereon  :  and  the  ('Opy  of  the  ]>rooeedin.!:s  of  the  .said 
iisseinhl\  from  the  -1th  day  of  .liinuary,  1744,  to  the 
2!Uh  of  the  same  inontli  inchisi\e.  which  were  sent  to 
me,    and  aix'  herewith  returned  to  your  Lordships. 

And  I  lieu,  lea\'e  to  cihserve  to  your  Lordshi])S,  that, 
as  tlie  riiiht  of  si'ndinu;  memhevs  to  the  ireneral  assemhly 
of  the  said  province  appears  to  me  to  l)e  originally 
Ibunded  on  the  said  coiiimission  to  the  .'<aid  .loh'n  (.'utts 
to  lie  President  <>f  fla  ( 'ouncil  of  said  prnvince.  hy  which 
commission,  ;;s  W(dl  the  ]H-rsnns  who  are  to  choose  siadi 
deputies,  as  tht-  time  and  place  of  their  ineetinu-.  are  left 
to  the  di^cretiiai  of  the  said  Pr'/sident  and  Council  :  and 
as  h\  the  co.nmissioii  i;ranti'd  l)y  Kiui;-  William  and 
Queen  .Ma r\  to  Samuel  Allen,  Ks(|.  to  he  (iovernor  and 
("ominander-in Chief  ot  (he  said  {"roviiut  ,  the  asseml)l_\ 
of  the  freeholders  thereof  1:^  directed  to  he  calleil  in  such 
manner  and  form  a-  the  --aid  (iovernor,  I»_\  the  advice 
»)f  the  Couiicil.  shall  lind  mos.  t-onvenient  for  His  Ma- 
jesty's service,  which  powers  of  the  said  Governor  and 


OF  T)IE  COLONIAL  CONSTITUTIONS 


275 


('oinicil  do  not 
!•»■   iihiiika-d,    J 


ippc'ur  to  iju"  to  liiivc!  hcen  taken  away 


(. 


ouiiri 


1  oi'tl 


Hi  Si 


1111  oi"  o])inioii  that   the   ( 
lid  m 


jovornor   and 


M 


province,  lor  the  time  hein<i;,  may  hy 


'.K'-^ty's  writ    coinniand    tlu-  >ljerifl"  of  tl 
province  to   mnke  out  precepts,   to  he  directed 


ie    sa; 


towns,  ])arishes  and  districts,    within  tl 


tl 


le  siinie,   as 


le  siiid  Governor  and  ( 


tliem  to  ekn-t  and  send 


ouncil 


fit 


hall  think  lit 


to  such 
they, 


I'oquinng 


present  such  tonus,  parishes  and  district 


persons,  duly  (pialilied  to  re- 


in tl 


assenioh-  o 


1"  tin 


le  ii'c 


iieral 


e  said  pro\  iiice 


And  it  likewise  :i])pe;irs  to  -ne.  that 


dents  otlered  l)v  tl 


tl 


le  s(>\(.rid 


:ie  assenil)l\-  oi'  the 


])rece- 


ai(J 


sii 


pport  of  the  riirhts  I 


pio\  nice,   in 


tein,!:-  'u  the  said  house 


court,  to  i^rant  the  jirivileir,.  to  t 


oi'  general 


rep  resent.'!  lives  to  sit   in   tl 


»^vlls  (,r  ]);irishes,  to  send 


^uUiciently  prove  or  iiiiike  nut  such  a  ridit 


H'  ,ii-eiier;il   Mssend)ly,    do  not 
most  of  them 


1)0111^'  eases,  where  such  riirh^ 
jesty's  charter,  jind   conlinned 


assented  to  hv  the  (Jovei 


i-as   -lantcd  liy  Ilis  iMa- 
hy  act  of  th.'  assemhlv. 


nor  and  couii.il ;  and  anv  mod- 


•■ni  insti.nce  of  the  Mssemhly  ah.ne  t:ikiu,o(.n  themsel 
to  firant  such  a  |)riviIeo(.,  apj 
croiichnient  on  J  lis  AJiijest 


ves 


leiiiiu;^-   to   Die   ;,  lii^h   en- 


iiianilestly  to   vest  the   u  hoi 
nice  in  the  y:enei';il  court,  or  I 
A 


|est\  s  prci'oo;,ti\ 


c.   a 


e   iro\ 


ml  tending 
eriniicnt  of  (he  prov- 


Ano,  as  it  is  represented    in  (i 


louse  o,    re|)resentati\es. 


h'tter  thiit  the  live  t 


ovenior   Wentwortl 


owns,  or  district^,    thri 


IS 


em  niention- 


<'d,  pay  neiir  onc-lifth  piirt  of  th 
to  me  that  the  said   ( 


I'  pio\  inciid  tax,  it  sec 


ms 


>o\ernor  aclcd 


in^.:  the  said  towns  to  idcct  and  si^iul 


the 


f,a'iieral  assemhlv;  and    that    tl 


>i'opci'ly.  in  direct- 
;cpre-cii'atives  to 


od  arhitrarily  and 

'•cfore  tluy  procec<|(.,|  to  the  v\ 


c  assemlfly  have  act- 
iilen'aily  in   (  xchtdiii!.'-  smdi  memhers 


loice  of  a 


IV 


licakciv 


d.    in  (>rdcr  that  \\n   douht    mav 


tl. 


,i.i 


remain  concerning 


■<i  HI    uni  IIS   K  1 


^'cnd  sucji  ri'presentatives, 


I, , 


l'  5 


m 


276 


OPINIONS  OF  EMINENT  LAWYEKS. 


and  as  it  niav  hereafter  1)0  necessary  to  empower  othin- 
towns  to  do  the  like,  pursuant  to  the  o8th  article  of  the 
said  Mr.  Wentworth's  instructions  for  the  settling  new 
townships,  who  are  to  have  and  enjoy  all  the  immunities 
and  ])rivile,<ros  as  do  of  right  belong  to  any  other  parish, 
or  townsliip.  within  the  sai/.  province,  I  apprehend  it 
may  he  expedient  tor  His  Majesty,  in  case  it  shall  be 
Ins  ro>al  pleasure  so  to  do,  to  make  some  new  estaijlish- 
ment  concerning  such  elections,  which,  I  conceive,  may 
be  done  bv  sending  instructions  to  the  Governor  of 
the  said  province,  there1)y  empowering  the  said  towns, 
!uid  districts,  and  also  any  other  new  townships  to  be 
settled  within  the  said  province,  pursuant  to  the  afore- 
said article,  under  such  restrictions  as  His  Majesty  in 
his  royal  wisdom  shall  think  fit,  to  choose  and  send  re- 
presentatives to  sit  in  the  said  assembly,  or  general 
court,  and  directing  the  i-aid  Governor  to  issue  proper 
writs  and  precepts  for  that  purposi.v  which  instructions.  I 
am  of  o})ini()n.  His  Majesty,  in  casr  he  shall  so  think  lit, 
mav  accordingly  send  to  the  said  Governor  lawfully  and 
consistentlv  with  the  constitution  of  the  said  province. 

Fran.  Fane. 
July  1,  ITfti. 

(.").)  77/r  opinion  of  the  Attotntii  .nid  SoU<itor-Gen- 
(vcl.   JiU'lir  onil  Miirmii,  on   thv  same  point. 

(V^^E.— Oi\  the  28th  of  November,  17! r.,  an  act  was 
passed  in  His  Majesty's  province  of  North  Carolina,  en- 
titled •'  an  act  for  the  better  ascertaining  the  number  of 
mer.iluMv  to  l)o  chosen  for  the  several  counties  within 
this  ])rovin<'c.  to  sit  and  vote  in  general  assembly,  and 
for  establishing  a  more  ecpial  representatiim  of  all  His 
Mni(>sty"<  subjects,  in  the  house  of  burgesses  " 

rni         1,1..    ..("^^Klo   loiir   ..-ntu    f.irtVi      thnf    tile   lldlilbit- 


f 


OP  THE  COLONIAL  CONSTITUTIONS. 


nnts  of  the  several  Jiorthern  counties  lind  assumed  to 
themselves  the  privilege  of  choosing  live  peisons  to  re- 
present them  in  general  assembly,  without  any  pretence 
for  such  claim,  while  those  of  the  southern  and  western 
counties,  who  are  more  numerous,  and  contril)ute  much 
mo:e  tt)  the  general  tax,  were  represented  only  by  two 
members,  which  irregularity  had  been  attended  with 
great  inconvenience ;  and  therefore  directs,  that  every 
county  already  erected  or  to  be  erected,  shall,  for  the 
future,  choose  two  representatives  to  sit  in  general 
assembly,  and  that  fourteen  members  shall  constitute  a 
quorum  of  the  assembly. 

This  act  having  been  transmitted  to  the  Lords  Com- 
missioners for  Trade  and  Plantations  by  Mr.  Johnston, 
late  Governor  of  this  province,  a  petition  was  soon  after 
presented  to  the  King,  on  behalf  of  the  northern  pre- 
cuicts  or  counties  of  Chowan,  Perquimans,  Pasquotank, 
Currituck,  Berty  and  Tyrrell,  complaining  of  the  said 
(fovernor,  of  having  passed  tlu^  said  act  in  an  illegal, 
improper  way,  and  praying  to  be  reinstated  in  their  just 
rights  and  privileges. 

This  petition  having  been  reterred  Iiy  His  Majesty  to 
the  Lords  of  the  committee  of  Council,  was,  by  their 
Lordships,  referred  to  the  Board  of  TVade  to  consider 
tlioreof  and  report  their  op.nion  upon  it. 

Tpoii  a  hear-ng  before  the  Lords  Commissioners  tbr 
Tia-li'  Mild  -'Mntations,  of  the  petitioners,  inconsequence 
of  the  said  reference,  and  it  appealing  that  they  were 
nof  'ible  to  prove  the  allegations  of  their  |K'tition  for 
want  of  evidence,  their  Lordships  made  a  report  U^  the 
Lords  of  the  comnxittee  of  Council,  and  submitted, 
whether  it  would  not  be  jumper  that  orders  should  be 
given  to  admit  the  petitioners  to  examine  witnessew  iu 


278 


oriMONs  or  kminknt  l.awvers. 


It 


tlu'  pnuiiice  ill  Mippmt  of  the  pctiti"!!,  ;is  also  to  iillow 
the  liki'  liluTty  to  the  (iov(M'nor.  lo  cxaiiiiiic  wiiiu'sscs 
on  liis  pait.  and  to  direct  him  to  rt'tuni  his  answer  to 
the  coiiiphiiiits  ronta, lud  in  tlie  >;!id  ],<'tition.  ami  lo 
transmit  cojiic-  oi  the  mimites  oi'  the  ueni'i-al  assemMv, 
and  ci'slicli  oliier  |ia|ii'i's  as  uii,:ilit  he  neees^ai'V  lor  His 
Majest\  s  rull  inloi'Miatiou  in  thi.<  all'air. 

In  eonsei|nenre  of  tiiis  leport,  the  Lords  of  the  eoin- 
mittee  of  (':iiniiii  were  pleased  to  direct,  ■•  tiiat  a  eopy 
of  the  >.iid  petition  ,.1'  coin|)laint  sli.udd  he  iransmille(l 
to  (ia!)riel  John  .on.  Ivi|..  (io\ernoi'  oi'  the  -aid  pio- 
vinet'.  iiMpiirinu  him  to  relnrn  his  anwer  tiier*  nnto  in 
writing'  w  it  h  all  coinenieiit  .-peed:  and  that  iheeom- 
plainanl- .  I'l-  tiieir  ai:eiit-,  >honld  U^al  lilieil\  to  lake 
copies  )!'  all  r(  curds,  i;i  anv  of  the  pnlilic  ollice-  in  the 
s.iid  pro\  inc.',  loiichiii.t;'  tin'  m.ittei"-  (  onipl  lined  oi.  as 
tlu'  said  coiiijilainaio -,  oi'  I  heir  agents,  slioidd  lidnk  ne- 
cessary tosn|ii'oil  lli(-;!id  pe*  it  ion  of  eiim|ilanil  :  and 
that  the  >«me  -iionld  iic  deli\en'd  to  ihc '•oiiiplaoiants, 
or  their  auciit".  i^^ned  ami  ant  lieiit  icateil  in  t  i.e  n-iial 
maniici-  under  the  >e;;i  (  I  IIk  jiio\  ince,  upon  pax  ii'Li  tho 
usual  lee-  I'lir  the  -niie;  ami  that  Tree  I'lierts  -iioiild  l(i> 
als()i:i\eii  to  all  -mdi  per.-ons  .a-  the-.iid  (  oiupiainant-. 
or  their  a^ivnts.  .-hunld  name,  as  also  i  ■,  all  .-iich  pcrMHis 
a>  the  -aid  (loNernor  sin.iild  name,  ti  make  alilihis  it--  he- 
lore  the  ("hief  .lu-tiee  and  .lnd;.e  of  the  ('  .int  ol'  .\d- 
nii;ali\  o.  .-aid  pid\  ince.  or  either  ol'  thein.  ol  wliat 
the\  knew  lonehinii-  the  pieuiines,  pju'tieiilarly  ns  t^)  the 
prat  : ice  ol  the  .-aid  provinee  with  ivijiud  to  n  nuijority 
oi'thc  a.xst'iubly  hoin^  present  iH-lore  mii\  hii-inoss  iMiuld 
Ite  prooi't'di'il  upnii.  and  likewise  with  roj^ui'^l  lo  the 
uinnher  of  re | » rest- nUi lives  sent  by  eu»  h  o|  the  nortliorn 
eounlies  to  the  ^enenil  HHsemhh    IVoni  the  \ear   hi'.'i'p   to 


OK    THE    COLOMAT,    (  O.NhTITITIONs.  279 

tli.'.vi.u-  iTMi;  .Mndtlw-.t  smHi  ("ln..f  .Fu.ti.v,  or  Judge 
of  Hit'  -v.hnirnlt.v  Cnurt.  ,.r  citluT  ..f  tlicii.  .sl.ouM  smn- 
"<nn  UvWnv  hi,,,  ,„■  thon,,  s„cl,  ,H.,-s..ns  as  the  ron.phiin- 
ant-.  ...•thri,.;,-c.nts.  sho„l,l  iia.i,...  a.  lik,.wis,.  „,„.!,  ,,, 
tlu'  sii.l  (luvc'i.,.,-  .sluHild  „ai,„.,  a„,|  (ak..  th.'iriitn.kvits, 
■ii'.l  cxaiuin.-  them  „i)(.„  sn.h  iiitrian-,!M,-i,.s  as  should 
I'C'  rxhihit^.,!  loi-  that  ,.u,-|,o>,..  whirh  .!...  said  (iov.TUor 
was  l„,.i..„iiy  to  the  said  ChiHMu.ti.H.  an<l.l.,d..v  of 
tlu.  Adumall,vCou,.|.assoo„as,„iu|„  |,..;  and  that  the 
oon.,,la,nants,    o,-  thri,-  a^vnts.    should  .h.liv..- unto  the 

^•aid(.,ur,no,-.  ,•o|,i,w„t•s,.,•haHida^its.„■,lis|,^-itiousas 
.should  lu.  made  or  take,,  i„  this  lualter  o„  f',eir  part  :  as 
also,  that  the  said  (love.'uor  sho„l,|  .Idivr  luitoth.-  SMid 
nmiplaioanls.  or  their    a-euts  eopi.'s  ,,1'  hi^  an^v.-r  and 
•'I'suH,   allidavils  or  depositions   as    dio.dd     hase   Keen 
lik-ui-    inad.uM    his  pail     wilhi,,    the    space  of  three 
"•<>ulh>  alter  the  ,ec,.ipt  of  the  sod/ader:   as  also    th,.t 
^^'"'i"  "".l.v    daxs  alter   reeeivi,,.    ,  leh   otl,e,-'s  pn,o(s, 
tlu->:iid  (iovernershnuhl  ,„  |,k,.  in:M,:,erex(ha,|oe  with' 
llK'said    e,,n,plai„a„|s,   „r  th.Mr  auents.  the    icpliesthat 
>li.Md.l  l,e,uadel,\   al],d:n.|,,,r,l,.p,..ll„.„s,    I.eeueM.ey 
^N'lv  na>,H„,lt_ed.and  thai   the  uhnh-     matter  <ho,.ld  he 
"■""""•''""•''•'    "'<■  -'•"'•■I'  thesud  p,.,M„,.,..  with,,,  (he 
^paee    ol   ,s,x    ,nunlh>   l,,.,,,    th.    lone  that  I  he  said  .a■.h•r 
^l.ol.hl  he  ser\  ed  upo„  (he said  (.oven.or,,,   tile  pl■n^  i„ee 
"f  North  CaiMlnia;    an.l  that     ti„     -aid  ( .nv  eri.or  sh-uild 

^'■""""''     ''"■  '" '•-    "I    tl'-    .ueneral   asManMv   ..f  the 

Niidprovinre,  in  Noveinh.i,  17  Ml  with  in,  names  of 
such  meinkM-s  a«  were  pre-enl  al  their  lusl  nieetni- 
Hie  names  of  sue!,  a-  u ere  sworn  in  Mllerward-.  au-l  llu^ 
whi.le  numlM-r  pieseni  diuniu  1  li.'  eontinnnnee  ot  that 
session,  an.l  ;,|m.  attested  eopies  of  son.e  of  the  writs  js- 
bUcd  loreuUin;;  a«»eMibliei*unUNu-Jei.t  t,,.l,..   , i-«,! 

i_  .--___s. ,..,  ,....  TITTTr 


]■   ^  '• 

V   t 


280 


OPINIONS    OF    EMINENT    LAWYERS. 


if  the  same  lonu  had  been  constantly  observed,  nud  i( 
thei-i'  had  l)een  any  variation  in  the  form  of  those  writs, 
tlien  to  send  copies  of  such  as  had  so  varied,  and  also 
copies  of  the  returns  of  such  writs,  together  with  a  cop.v 
of  tlie  order  (if  the  palatine's  court,  in  the  year  lii'JG, 
directing  live  mend)ers  to  be  chosen  for  the  northern 
counties,  and  that  the  san?"  should  be  properl_\  authen- 
ticated, nndi'i-  the  seal  of  the  said  jtrovince.  and  trans- 
mitted at  tlie  same  time  with  the  albrementioned  proofs 
and  dept)sitions  ;  whereof  the  said  Governi-i'  of  N'ortli 
Carolina,  the  Chief  Justice  and  Judge  of  the  Adunralty 
Com-t,  ami  all  others  whom  it  nnght  concern,  were  to 
take  notice,  and  govern  themselves  accordingly." 

In  roiisiM|Ucn<c  of  trus  order,  the  jiajiers  and  othiT 
evidence,  tiicn  li\-  i((|tiired  to  be  transnntted.  wcic  hiid 
before  the  Lords  of  tiic  comnnttee  of  ('onncil.  who  re- 
ferred tiiem  to  the  Lords  Conmnssioners  IW  'fraiie  ami 
I'laidatioli-^,  witli  diiccfions  to  proceed  in  (lif  cvainina- 
tioii  of  tlii-^  alVair.  and  n.ake  a  further  report  tlicrciipon. 

On  the  .".Otii  of  April.  i7'»<'.  th 'ir  Lord<iilii^  rd'crrcd 
the  -^aid  ait  to  ili<  .Maje-^ty's  Attorney  iind  Soliritor- 
(Ii'iicral  In.^^tb.i  witli  .1  I'opy  of  an  orilv'r  of  \\\<-  Loid- 
of  tlir  iMiinnitlcf  ol  ( 'Miiu'il,  referring  to  their  Ijoiii^liii''- 
the  iHlition  iind  rtpresenfation  of  the  iidi.ibitnnt-  o|  the 
iioi  tlicin  .•(iiititi'w  i|gain^t  the  same,  ami  all  tiu'  jiapii- 
anil  r\  idirici'  t  raii-init  ted.  a'^  well  ni  'upport  ol'  thr  -.liil 
petition,  n."  of  the  proceedings  of  the  (!o\erni'i-  niul 
Conneii  :iml  .\  mhiI'In  'ii  pas,  ing  the  >^aid  law.  ami  de- 
.sired  their  opinioiiw  In  tlier  it  iniuht  be  pioper.  consiHt- 
rnlK  with  the  jn-t  rights  of  the  iidi.ihitant-  an<l  the 
cuMslidltinii  of  the  said  ]>ro\inee.  to  !>e  eoniuined  iiy 
His  Majesty, 

(»n  the     It  of  l>eeember,   ITo'l,    His  Majesty  s  Altor- 


II 


UK    THE  COLONT    I.  CONSTITUTIONS. 


281 


I.e.-  and  S(.licitor-(Joiu-nil  .-..[...rftMi,   •  that  thoj  had  con- 
sHk-HMl    the    said  ,...t    and   had   hoard   counsel  for  and 
...gainst  tho  same:  that,  although  the  Governor  of  Nor  -. 
Cavuhu.i  nii-ht  eertahily  prorogue  the  asseinWv  to  me 
atHuii   i,!,uv  audtimoas    ho   should  soo  pioper ;  and 
althoui,''  U  had  not   hoc-n    ukmIc  out  sulliriontlv  to  their 
•sitisfaotinu,  that  t  he  p,vson-o  ofa  majority  ,.f  the  whole 
as^omhh-    was    ai,.ohit..ly    nooc^.arv  to   tho  ,h,i„..  any 
'"'■■nio..,:Hano^,.d   I.,v  tho  p.!iiionorsa<raiu.t  said  act  • 
>■••'  <!'<'   .■;<f  appeared    (..have   heou  passe.  1    hv  n.ana-o- 
liU'Ut,  pro.Mpitation,    and  surprise,  when  vorv"few  n.om- 
hors  wore  present  :  an.l  that  it   is  of  su.'h   a  nature  and 
'''■luh'u.y,  and    has  such  olfoot  and  oporati-.n,  that  the 
Cnvc-rn-.r.  I.y  his  in-tn.etinn^,  ou-ht  not   to  have  assent- 
'■'""!'  '!'"".di  'tl.adpa-.s:.d,ielil)er.-;e|y  ina^ullassem- 
''!v;  iin.l  .;,at  the;,   were    of  ..pinion  tiiat  tho  said  act  is 
not  proper  to  lie  ounlinnod."' 

The  points  iip.^n  uhi.di  tlio  lo-ality  or  illegality,  the 
l"'ni.rietN  nv  iiMpi,,p,ietx.  ..f  this  act  .h-pond^aro": '  J.— 
i'l.o  ridit  uhl.di  tho  inh:,!.itants  of  ih.-  >iv  n..rfhern 
'■"initios  .•lain,  of  son.linu  live  representatives,  each  to 
theKen.,ala.>on,l.iy:  l>.  Th.-  no.vssity  „f  a  majority 
t"  ••'"i-lihil  •  a  .piorinr  ,>f  th.'  ssse„ihly  ;  an.l  ;5.  The 
iiirnner  In  whi.di  th.^  a.l  i.i  .pi.-iinu  ua^  passed. 

In  ..r.l.M'  i..ju.|.:o„f  th..  lu,.  (ir-^t  .,f  those  points,  it 
will  he  n.ressary  to  ivv.mI  Io  ihat  p..,i,.,|  u  he,,  li,-t  an 
JH.semhlywaM  e.m.t.tule.l  1,,  th,.  ...Laiy,  a„.|  |.,  state 
Mii'U  reKula(ion.s  «;,  have  uoi.i  time  to  (i,„e  h.en  ma.le 
with  respect  thereto,  mid  Uy  what  authonl.N  th,.  MXeral 
places,  wliieh  have  sent  members  to  the  as"-e,uhU  ,  l,ave 
l»ee:i  einiMtwored  >-u  to  do. 

In  l<i(;;{.  f,„on  ulYer  the  grant  ma.l.'  h\  King  ClmrU-.s 

llie  Second    of  ( !ii-..II....    «..   ti...  i  i     n         •    . 

:.■■:.:;::     :  ruprietor-.  iii.\  , 

.1—  * 


282 


OPINIONS  OF  EMINENT  LAWVERS. 


. 


by  a  commission  under  '^lioir  luind  and  .seals,  erected  all 
that  part  ol"  the  j;raiit  wnieh  lay  to  the  north-east  ot" 
Chowan  Kiver,  iiitu  a  scparal^  .aid  distinct  county,  by 
the  name  ol'  Alhemarle  (!i)iuity. 

In  1()(>T,  the  iiru[i;  ietiirs  a;. pointed  Samuel  Stephens 
Es([.  to  be  their  (iovniior  ol"  AUteiiiarle  (.'(uuity,  with 
a  powei' of  iKiuiiuatin'j;  twelve  persons  to  bi  his  eouneil, 
and  to  call  an  as-eiiil)ly  ♦»(' twelve  persons,  to  lie  cho>en 
from  amoni;  the  t'leeh  /Iders,  until  the  county  should  be 
divided  into  parislies.  ilistricts,  or  divisions,  and  then 
eacii  division,  di.-trict,  or  parish,  was  io  send  two  repre- 
sentatives who,  with  the  jiovenior  and  council,  were  to 
form  a   general  as>einb!y. 

In  iCiil'.l  till'  |ir()[irii'tors  of  (^n-ohua  formed  a  model  of 
government  I'lr  the  iK'tter  ordering'  am'  riding  the  prov- 
ince, connnonly  known  b\  tlie  name  ol  the  fundamental 
constitutions  of  Carolina. 

l}y  these  eons'iitulions  it  was  (hreeted  that  a  parlia- 
ment should  be  hehl  oine  in  eveiA  two  yeai>,  to  eim^ist, 
of  '.he  projirietoi  s.  (.r  their  (h'puties.  the  hiud^raxes 
and  cassi(pies,  and  oni'  iVeeholder  out  ol'  evi'r\  pre- 
cinct. 

These  ''nu-titutioii>  iio\\c\  (•!•  Weii'  ne\er  reeeived  or 
ackuow  leii'ed  by  thepeojih';  jiubin  I  (iH,'),  Were  laida>ide 
by   the  prop' i>'t<>r>  them-ihe- 

'I'he  prop!  ietor->  a<::'in.  in  loj'.l.  Ii;(ni<'d  a  new  set  of 
fandaiiieiital  eoii>til  n(  ion-,  with  -onie  btlh'  \  iiiatiou  as 
to  the  succe.xsion  ot'  ollieei-.  ami  the-e  wei'e  >ent  to  tiie 
Governor-  of  tho  -e\eiai  ili.--trict,s  in  CaioUna.  winrh 
were  ih'n  tliive,  vi/.     .\lln  ii"nle.  Craven  ami  Chirer.ddn. 

With  !he.'<e  fu':ilamcnta!  constitutions,  the  (io\einor 
of  Albenuirle  (!ounty  had  iu'-fi  uetiou^  to  i,-->iie  wiit-  to 
the  four  precinct."*  of  that  eoimi\ ,  re(piirinu  them  to  elect 


OP  THE  COLOMAL  CONSTITUTIONS.  283 

each  five  freeholders,  to  be  tlieir  representatives  in  as- 
seniljly,  Avho  were  to  govern  tliemselves  according 
to  tlie  rules  laid  down  in  the  fundanimtal  consti- 
tutions. 

In  1(101,  Colonel  Liidwell  was  appointe,  »,o,ornor  of 
all  Carolina,  with  instructions  from  the  proprietors  to 
rail  a  general  asseinhy  to  consist  of  twenty  members, 


viz  : 


For  Albemarle  County 
For  Berkeley  County 
For  Colleton  County 
For  Craven  County 


5 
5 
5 
5 


HLr 


20 

And  when  any  new  county  was  erected,  ami  should 
make  it  appear  fliat  thciv  wriv  forty  frc-holdors,  inhaS- 
itants  of  it,  to  li!ive  a  privilege  o'"  sending  four  members 
to  the  assembly,  and  then  the  wli..lc  to  be  reduced  to 
four  for  (>a('h  coin-.tw 

The  said  ri„vornor  was  fiirtlier  directed  by  an  ad.li- 
tioual  iiistriirtiou.  to  appoint  a  deput\  -governor  of  North 
CuioliiiJK  if  he  thought  prop,"!-:  and,  if  he  >lionM  fnid  it 
irnpractieal.lefor  .MI.em.iric  ( "onnty  t..  sei,,|  deh  -jites  to 
til.'  g.'neral  asseiiihly.  to  din.,(  Herkehy,  and  Colleton, 
to  send   s«'v<'ii  each,  and  ('ra\cn  six, 

Tiie  <jime  powers  Miid  dirfrtioii-given  to  Col(.neI  Lud- 
wrll,  were  given  by  the  proprietors  (,>  M,-  .^mitli  and 
Ml-  .\n  iid.de,  his  siieees.v.iis  in  th.'gov.  iiiiiirnt  of  ("aro- 
''"■'  i"  ''''•'■''  an.l  Ifi'lJ,  fl,.,  1;,||,.,-  „(■  uhuin.  ;it  n  pala- 
lin«'  s  eonit.  holdcii  in  IC'.m;,  md  re,,  wiit^  I,,  l,e  isMied 
ait  tn  (he  severnl  l.nvin,!-  ,,f  I  h,'  ,nmit  \   .,''    Alb,  uiark>, 

t,ir      cll'r-ti  lici-    l'i\  1.     l.iii.,...^.  ....      C, 1 


:  ccuict ; 


«|  ml      t  lie 


•m 


i  t- 


|i 


ii 


fm  ■  ■*  V 


%S4> 


OPIMOx\S  OF  EMIiNENT  LAWYERS. 


precinct  of  Painptico,  without  tlie  limits  of  Albemarle  to 
the  southward,  in  the  county  of  Arolulale,  was  erected 
into  a  county  by  the  name  of  Bath,  and  empowered  to 
send  two  menil)ers  to  tlie  assembly. 

I'.  ±7i'')  IJath  County  was,  Ijy  an  order  of  a  coiuicil  (if 
the  proprietors'  deputies,  divided  into  three  precincts, 
by  the  names  tjfPamptico,  Wickham  and  Ar'hdale,  each 
of  which  were,  by  the  said  order,  em{)nweied  to  send 
two  members  to  tlie  assemlily. 

Some  tiiMC  after  this,  the  particular  time  not  apjwar- 
ing,  the  three  aforementioned  counties  were  by  the  siic- 
CCf  linji;  r<()Vern(jrs  ai)[)ointed  by  the  proprictuis  into 
four  counties,  l)y  the  names  of  Beaufurt,  Ilyde,  Ciaveu, 
and  Carteret,  each  of  which  sent  twonumlHTs  to  the 
ati.sembly  ;  and  in  IT!')  two  (owns  were  erected  in  (he 
southern  district,  by  the  name  ol"  Hath  Town,  and  Kden- 
ton,  tlie  flr>t  of  wiiii'h  w;is  empnwert'd,  b\-  an  act  of  the 
legislature,  to  send  one  luember  to  thi-  asMMubly. 

In  the  same  yi'ar  iiu  Met  was  passed  in  North  Caro- 
lina, cntitK'd  "an  act  rdaliiiL;  to  IIk-  liii'unial  ;Mid  oilier 
a.ssemblie>,"  which  diitn'tcd  that  eacli  precinct  in  ;\ib(>- 
niarle  county.  \  ix,  :  Ciiowao,  l'cii|uiuians.  l'as((;iotaiik, 
'"."..I  Cuii'ituck.  sli(>'.'.Id  send  li\('  mnulicis  to  the  li-^scm- 
bly.  and  e\  I'ry  ])re''iuc*  iue\ crx dtbci  comil  \  oi-  coi; ntics 
then  erected  or  theicarter  to  be  eii'.led,  to  -end  1  wn  :  but 
this  act  wa-<  repeab'd  l,\  Hj;  .M;i je.^ty 'ri  oi'(b'i-  in  euuiicii, 
dated   the  LM>I  day  of  July.  \7'M. 

lU  17-2  a  new  precinct  wa^.  by  an  act  of  a<senilil\, 
erected  out  of  the  cnuntx  of  Albemarle  lallid  l>eit\ 
precinct,  and  empowered  to  send  fixe  member^  (.)  the 
assembly,  as  wa--  'i'yeli  precinct,  in  the  \eai'   IT-!'.* 

In  172'.'  tln'  Crown  |inrcliased  the  Mivcreiixiit v  ol' both 
Carolinas    from   the   iiro|irietor>,  and  al>o  se\cn-ei:ihtlis 


OP  THE  COLONIAL  CONSTITUTIONS. 


285 


of  the  property  of  the  lands,  which  purchase  wa.s  con- 
l^rincd  by  act  of  parliament,  and,  in  consequence  thereof 
His  Majesty  appointed  a  Governor  of  North  Carolina, 
v,'ith  a  power  of  calling  assemblies  according  to  tlie 
laws  and  usage  of  the  said  province. 

It  appears  from  the  journal  of  the  first  assoml)ly  call- 
ed after  the  Crown's  purchase,  that  the  assembly  con- 
sisted of  forty-one  meinbers,  viz  ; 


For  Chowan   precinct 

5 

Perquiman.s 
Pasquotant 
Currituck            ^         , 

5 
5 
5 

Berty 

Tyrrell       . 
Beaufort     ,         ^ 

5 
5 

2 

"yde 

2 

Craven       ,         ,         .         . 

2 

Carteret     ,         ,         .         . 

2 

Edent<in      .         ,         ,         . 

1 

Batii  Town 

Newbern             ,         , 

1 
1 

41 


During  the  administration  of  (Jovcnior  iJiiniii^tdii,  tlio 
first  (iovernor,  the  following  precincts  wt  iv  tncti'd  in 
the  county  nfBath  by  tlie  (Jovcnini  >  (inlcr,  \  i/;  Ni'w 
Ilanovor,  Edgecumln?,  Bladen,  and  On-low.  tin-  two  last 
of  which  were  conlumed  by  act  of  assciiilils    I7:'.i. 

In  \1'M  Gabriel  Johnston  E,s(|.  was  appoiulcil  (iovcr- 
nor  of  this  urovince:  and  Ihe  first  ass.uil.lv   vvlmli  m.t 


• 


m 


t 


2^6 


OPiNTONS  OF  EMINENT  LAWYERS. 


after    his   arrival    was    composed   of    forty-nine   mem- 
bers, viz: 


Fi)r  Ch.'Wan 

5 

Porquii'.inas 

5 

Currituck 

5 

Pasquotank 

5 

IkTty 

5 

Tyrrell 

5  . 

Bern  tort 

2 

Hyde 

2 

Craven 

2 

Carteret      . 

2 

Edyecunihe 

2 

New  Hanover 

2 

Bladen 

2 

Onslow 

2 

Edenton 

1 

Bat  11  Town 

•                  • 

1 

Newbern 

1 

49 

In  ^^'M^  the  writs  issued  by  the  Governor  fni-  cnlling 
assendilies,  which  before  ihat  time  directed  the  north- 
ern counties  to  send  each  five  incuil)crs,  were  nltered, 
and  thi'V  wi'ic  diiTctid  (u  scud  not  any  particular  num- 
Jicr,  but  ic|ir('-cidativi"s  only,  in  ircncral  word-;. 

Durini:'  tlic  administration  of  (Jovernor  .lobuston. 
jiart  of  Hnty  County  was.  liy  an  act  of  as^cnibh  .  erect- 
ed into  a  separate  connty.  liy  (he  name  of  Nortbamptou, 
and  empowereii  (o  senM  two  representatives  to  tbc  as- 
sembly; and  Ihe  same  act  directed  tli.it  I'.o't  v  .  o\nit\-, 
for    the    future,   shall  send  iiut    three;  and  at  the  sauu' 


■%; 


'\- 


or  THE  COLONIAL  CONSTITL  1  lU;\y. 

coiuitv, 


287 


time  Edoecninbe 

eruor  IJuningtou  and  had  .sent  tu 


whicli  hud  been  erected  by  Gov- 
()   members  to  the  as- 


iis    conlinned  in  th;it  privilcne  bv  act  of 


sembly,  \v 
sen;bly. 

In  173U  the  town  of  WilminL^ti 
and  emjHjwered  to  ^ond  one  representative  to  the  assem- 
bly ;  and,  JTKk  a  liftle   before  the  passinir  ,,f  the  act  in 


)n  was  erected  bv  act. 


question,  two  other  count 


semidv,  in    the  south 


ies  were  erected   bv  act  of  at 


ern    district,  called  C 


Johnson,  and  empowered  to  send    each  tw 


tiv 


ranville  and 
()  lepresenta- 


es. 


From  the  foregoing  st;ite  therefore  it 
imc  of  i>as>ing  this  act,  the   pan 


the  t 


into    sev.mteen    counties    and  four  t' 


appears  that  at 
province    was  divided 


)wns  ;   that    four  of 


these  counties  in  the  county  of  Albemarle,  viz  :  Chowan, 
Perquimans,  I'asqnotank,    and  Ourrituck.  had,  from  the 


tirst    establishment  of  an 


assemlily,  chosen     each    five 


representatives,  and  the  other    two  in  tl 


viz  :   Ijei-tv  and   Tv 


le  same  couiity, 


rrvll,    had  been    ei:!])owered  bv   ihe 


acts  by  which  they  were  erected,  to  send  the  \\h 


bcr,  until  lierty  count v  w 


num- 


iis  limited  to    thre  '  1)\   the  act 


wiii.h  separated  Northampton  iVoni  it,  and  that  the  oth 

1  district,  commonly 


II-. 1 


or  eleven  counties,  in  the    souti 

called  JJath  county,  had  never  s.,  i.t  more  than  t 


wo  each. 


Since  tl 


1 


le  passing   this    act.   two  ..tln-r  comities   have 


)ccn  erected  bv  act    of 


a><cmni\ 


III 


th 


trict,  b\   the  nai 


southern  di.- 


.f  1) 


Ki,  oy  tile  names  ot    Diippjin  and  Au^oii. 
As  to    the  seeoiid    point,  \iz:    tiie    iiei-e.sit\- 


II  il\    to  eoii.-,titute  a 


qiinnim  ol  the  asx 


ml)l\.  it  a 


ly  the  chartt-r    granted  t  .  the  fn-^t 


a    ma- 
ppears 


iia.  in  1(! 


tl 


pi-opi'ie(or>  of  Caro- 


ial    tbev    had 


a   power 


malviuij:   laws. 


with  the  advice.  a,:sent,  and  aiiprobatioin.f  the  freemen 
of  the  .said  province,  or  of  the  -reater   part  of  them,  or 


3*.. 


i !- 


•|-; 


288 


OPINIONS  OP  EMINENT  LAWYERS. 


of  their  delogutes  or  deputies  ;  and  in  a  declaration  soon 
after  published  bv  the  proprietors,  setting  forth  the  en- 
couragonieuts  to  bo  allowed  to  persons  v/ho  should  settle 
in  that  provinco,  they  declare  that  they  will  empower 
the  niiij.-r  i)art  of  the  freeholders,  or  their  deputies  or 
asseiublyuRMi.  to  be  hy  them  chosen  out  of  themselves, 
to  make  tlieir  own  lawf^. 

By  the  hi  ^truction  given  to  Governor  Stephens,  iu 
1C67,  to  call  i.n  assemblVj  it  Was  declared  that  they 
should  have  a  power  of  ascertaining  their  own  quorum, 
provided  it  was  lot  less  than  one^third  of  the  whole 
nunil)er. 

By  the  fundamental  constitution,  it  is  declared  that 
the  qu  >i-.in  of  the  parliament  shall  be  one-half  of  the 
number. 

By  the  iii>trurtion  given  to  Colonel  Ludwell,  and  to 
his  successors  in  the  government  of  Messrs.  Smith  and 
Archdali'.  concerning  assemblies,  they  are  empowered, 
with  the  a(l\  ici  and  consent  of  the  deputies  of  the  pro- 
prietors, the  landgraves  and  cassiques,  and  Ihe  delegates 
of  the  iVeemen,  or  the  major  part  of  them,  to  make  and 
ordain  laws,  statutes,  and  ordinances. 

It  does  not  appear,  from  any  btK)ks  or  papers  in  the 
Plantation  OlHcc,  what  was  the  regulation  or  usage  with 
respect  to  till'  (juorum  of  the  assembly  from  the  year 
W.H  to  till'  year  17  b").  when  the  biennial  law  was  pass- 
ed. b\  wliicli  it  )vas  ena<ted  that  a  quorum  of  the  house 
ol   burgesses  should  not  be  less  th'>n  one-half 

it  is  to  be  jiicsumcd  that  this  rule  M-as  o})servcd 
whilr  tlie  act  remained  in  force,  and  it  does  appear  that 
at  the  lirst  assembly  i'  tiled  by  Mr,  Burrington,  a  ma- 
jority t'['  tlic  int'uiliers  were  present  the  first  day  of  the 
session;  ami  that  on  the  1st  day  of  January,  1731,  the 


fw 


OF  THE  COL.JNIAL  CONSTITUTIONS. 


289 


/  «- 


first  day  of  tbe  meeting  of  the  first  assembly  called  by 
iVlr.  Johnston,  the    succeeding  Governor,  he   adjourned 
them,  on  account  of  there  not  being  a  majority  present. 
As  to  the  third  point,  viz:  the  manner  of  passing  the 
law,  it  appears  by  tlie  journals  of  the  assembly,  that  the 
tussembly   by   which    this  law   was  passed    met  first  at 
Newburu,  „ii   the  12th   day    of  June,    1740,    and    were 
prorogued  to  the  21,^t  day  of  November,  to  be  then  held 
at  Wilmingt(m ;  that  they  met   at  Wilmington  on  the 
said  day,  fourteen    members   being  present,   when  the 
bill  now  in  question  wns'inuved  for,  and  brought  in  and 
read,  and  ordered  to  be  sent  to  the  council  the  next  day  ; 
that  on  the  24th    it  was  received   back,  and  read  a  sec- 
ond time,  and  that  it  was  read  a  third  time,   and  passed 
the  next  day. 

This  method  of  proceeding  in  passing  this  ..  .,  is  rep- 
resented by  the  northern  counties  as  a  design  of  the 
government  to  v,  -^nare  and  entrap  them  :  (he  town  of 
Wilmington,  to  Avliich  the  assembly  was  pror  >gued,  be- 
ing two  hundred  miles  from  their  habitations,  .,,'d  where 
it  was  not  possible  for  them  to  attend,  and  th.it  the 
fourteen  members  present  were  all  of  the  southern  dis- 
trict, as  well  as  the  council  which  advised  the  Governor 
to  take  this  step. 

The  Governor  of  the  siiid  province,  in  order  to  show 
tlie  propriety  and  necessity  of  this  law,  and  to  justifv 
his  p;r  sing  it,  ac(piaints  tlu;  Lords  (Jommissio-.^crs  for 
Tr.ide  and  Plantations,  in  a  letter  dated  the  9th  of 
March,  174*).  that  the  northern  counties  hiviui;-  thirtv- 
one  votes  out  of  filt\-f(»ur,  and  being  genei-allv  united 
uu'icr  the  conduct  of  n  f(>w  dpsigiiing  men.  who  found 
tlicii-  account  in  keeping  public  alVairsin  confusion,  they 
bad  made  the  Governor  ami  eoimcil  and  the  remainin<i- 

;)8 


1[ 


t  1 


290 


OPINIONS  or  EMINENT  LAW  .  ER3. 


menihors,  of  no  weight  in  that  It'jjjiHlaturo  ;  for  tlmy 
co'ild  not  so  much  as  meet  imU'ss  they  th()Uf;ht  lit  to  be 
present,  ami  after  they  were  met,  if  tliey  cHd  not  lilte 
any  bill  they  withdrew  privately,  and  then  the  majoiity 
of  1)urgesses  l)eing  absent,  no  more  busi'.es;  coitld  be 
done,  ')  that  the  very  being  of  assemblies  depended  on 
their  whim  and  humor  and  not  (  ii  the  Kin;:"-  writ  and 
Governors  procilamation  and  ])rorogation  :  that  this  was 
no  iniauinarv  eoiise(iuen('e.  but  a  real  elVeet,  which  had 
ha2)pened  more  than  once  within  tour  years,  when  he 
had  waited  with  the  council  for  three  or  lour  weeks  and 
been  oblig-l  to  separate  without  doing  any  one  thing; 
t!  at  when  he  pi'cu'ogued  the  assembly  in  June,  1740,  to 
the  middle  of  Novemln'i'  following,  then  to  meet  at  AVil- 
luington,  the_\  entenul  into  a  formal  agreement  nol  ta 
attend,  and  to  engage  as  many  of  the.t)thei'  members  as 
they  could  iniluence  to  stay  at  home. 

(Ji/nrf. — Ihive  all  tae  six  t;ounties.  viz:  (jhowan, 
Perijuimans,  Pasipiotank.  Currituck,  IWrty,  and  Tyrrell, 
or  any  of  them,  or  which  of  them,  a  right  to  elect  live 
representatives,  to  ser-  e  in  the  general  assembly  ? 

Though  the  case  eems  very  carefully  and  accurately 
stated,  we  are  afraiil  til'  giving  an  ollicial  opinion  upon 
so  'mportant  rights,  vvhere  a  onestion  has  arisen  upon 
which  the  parties  can  have  an  o|)portunit\  to  'le  heard. 
In  general,  as  tlu;  four  counties  lirst  named  li'om  the 
fir'^t  estal)lishment  of  an  assembly  are  said  to  have 
chosen  ea<  h  five  representatives,  and  the  two  counties 
last  named  were  eui[R)Wercd  by  the  ai'ts  of  a-siMubly  by 
v.hicti  tlu'y  were  created  to  seiul  each  the  like  nu'  ih-i, 
and  Berty  county,  ly  a  subsc([Uent  act,  was  limitcv'.  To 
three,  we  are  at  a  loss  to  find  out  u|)on  what  foundation 
an  objection  is  made  to  Hertv  countv  sending  three,  and 


OF  THE  COI.omvL    CONSTITUTIONS. 


291 


tlie  rest  five  representatives  each. 

(^iiipi-(\—U  a  iiiiij<;:-ity  of  the  representatives  neces- 
sar\   to  constitute  a  qnonnn  of  the  as-^'iiihlv  7 

It  doe-,  no*  sullieiently  appear  to  us,  that  a  majority 
of  the  representatives  is  necessary  to  constitute  a  quo- 
rum of  the  assembly  ;  such  a  constituticm  is  very  ex- 
traordinary, and  liable  to  greii.  inconvenience. 

(j„a.i.,,_-j\\ix^  the  huv  in  question  iefi;ally  and  proper- 
ly passed  \ 

Upon  this  question  w-  see  no  renson  to  vary  the  opin- 
ion we  gave  hy  our  report  of  the  1st  of  December,  IToO, 
above  referred  to. 

Q„are.~U  it  should  be  thou-ht  proper  to  repeal  the 
law,  Pan  the  Crown,  by  virtue  of  its  own  prerojrative, 
make  any  alteration,  wirh  respect  to  the  places  Avhich 
.send  reiMvsentatives  tr.  the  as.scmbly,  or  direct  what 
juiuiber  of  representatives  each  place  should  .send  / 

Though  it  m;.;-  not  be  advisable  for  the  Crown  to  im- 
peach rights  herctolbre  granted  and  en.joycd,  we  think, 
as  the  province  grows  more  peopled  and  cultivated,  the 
King  may  erect  towns  and  coj.nties.  and  -ive  theni  the 
privilege  of  choosing  representatives  ;  and  to  preserve 
the  Kin./.s  prerogativr  we  thi..k  it  (Might  rather  to  be  . 
dnne  in  .his  way.  than  by  act  of  fis.senioly. 

Since  this  law  was  passed,  assemblies"  have  met  and 
pnssed  man.y  laws  li,,-  erwting  courts  „f  judicature  and 
justice,  and  many  proceedings  have  been  had.  and  judg- 
ments given,  in  such  courts. 

Quore.—W  the  said  law  should  be  repealed,  will  the 
a.-ts  of  .assemblies  „f  the  s'lid  province,  held  in  conse- 
queu.-e  of  the  .^aid  M't,  (whi.'h  acts  were  subsornient  to 
Uie  pi.ssiug  of  tiu'  said  act  of  I  7  Hi,  but  previnns  to  the 
J-epeal  of  it.)  become  void  antl  illegal  by  .such  repeal? 


f  ri 


* 
s 


292  OPINIONS  OF  EMINENT  LAWYERS. 

Wo  appivlu'iid  the  acts  of  tlic  assi-iiihly  iin>  i^ood  till 
ri'UoaU'd,  and.  consiM^iuMitly,  void  onU'  Irom  iiotilicatioii 
of  tiic  ii'i'cal;  Imt  (Ik'  particular  constitution  of  this 
provi'u  is  not  stated  as  to  the  force  of  thidr  laws,  till 
approved  111- disa()i>i'ovcd  li\   the  Kiiifz;. 

(Jiio  r, . — t*"  *'«e  id  acts  should,  hy  the  repeal  of  the 
act  in  17  l<>.  '"  '  '  ,^.il  and  void  (//>  initio,  wiiat  method 
wdl  ii   he  jiii  lor     he   ('rown   to  take  to   indeuniify 

s\ich  pcr-oiis,  who  have  acted  luider  the  powers  and  au- 
thorities of  such  acts  .' 

This  falls  witiiin  the  aii-^wer  tt>  the  former  (piestion. 

.luly  liii    !7-"):{,  D.  KvDKu. 

W.    MlKHAV. 

(t».)    l)i<  Dpiiiinn  of  ihc   Attointiy  diid  Solicitor-iri  ii- 
eivi,  Jliimti/  iind  U.njil,  on  //i<;  j'rii'ilct/e-a  of  the  Jniiuii- 
t'u  A-'i'-eni/tfi/. 
To  the   Kiirht  ilonorahle    the    Lords    (  ounnissioners  for 

Trade  and  I'lantations. 

May  it  pleasi'  \uui'  Lord-hip-  ; 

Pursuant  to  your  Lordships  desire,  siirnified  to  us  hy 
Mr.  I'owuall,  in  his  leiter  of  tiie  l"»th  instant,  settiuj; 
[orth,  that  yom  l.nrd.-hipH  having;  lately  re  eivetl  a  hrt- 
tei-  from  Mr.  Knowle-.  <  lovernor  of  the  ishiiid  of  .lainai- 
oa,  in  which  hcacipiainls  \onr  Lordships  with  his  hav 
iu^'  disHolved  ihe  as-i-mhU  tiiere,  for  callihL''  in  ■piestion 
llin  Majesty's  riirliL  ol'  issuins;  writs  for  ••lectini^  niem- 
liei'M  to  sit  in  the  a— .inlily,  without  wiiitinti  for  a  mes- 
satit' fn-t  IroMi  them:  and  inclosing  to  us  an  extract  of 
tin-  sjiid  letter  toijelher  with  aiMipyof  tin  ri'solutiou 
oi  the  ,'is>einhl\  ,  upo,:  which  that  dis.Milntion  \\as  foinid- 
eii.  (wliii'li  extract  and  iiip\  are  iicrewil  h  refuiue<i  i  .ind 
lU'wirinL' our  opinion  whether  the  a>-emM\  were  war- 
ranted in  coming  to  that    n-.-ohition,    and    win  ther  it  he 


OF    THE    COLONIAL    CONsTITrTIONj 


2'j3 


consis 


lent    Willi    His  MiijesU's  rights  ruui  pivroiriitivc 


we    iiiivc  considered   tlioreof  iuid  do  not  tl 


iiiii\  oiirselvt'H 


Mil 

tioii 


n-iitly  iiiloiiiied    to  ;.Mve   an  opinioii  njxin  tl 


le  (iiies- 


,i;eiier!illv  stated,   be 


caiisi    it  depends    noon  the 


(■on.->titntion  ol"  the  assenil)lv  of  J; 


iiniiiea,  and  tlie  nsa 


wlietliir.    whilst    tlie  assonjhly   is  sitt 


K<' 


»i>\einoi' 


inir.  all  \aeancies 
slionld  liist  he  sin-nified  hy  tlieinselves  to  the  ( 
and  yet  the  case  must  I'mpiently  have  happened.  iNoth- 
iiig  is  tiansniitred  to  us  relative  to  th(>  particular  cousti- 
tiition  or  nsii;-e  in  Jauiaiea  upon  this  point,  .nd  there 
■■ivv  no  parties  to  whom  we  could  send  for  inlurnial  ion. 

liuis  seems  analoirousto  die  law 


\\  hat  the  asseinhly  eli 
and  practice  here;   hut    it  does  not    from    tl 
sarilv  follow    that  it 


u-nci     ncces- 


is,  or  oujiht   to  he.    the  liw  tl 


lere 


that  nni'^l  depend  upon  their  own  constitut 
ivhi(di,  without  further  light,  we  caiuiot  venture  t 
in  opinion  upon. 


ion  ami  usas;e. 


o  give 


April  -Id,  IT.-..-). 


U     .Ml 


lilt  w. 


(7.)      7/n 


Ik  II.    Li.o^ 


<>l'lnl(iii  of  th<  .^toiir  hi 


tn/t  !■•<.  II 


•In  I  In 


r  (I  III  /■■ 


^1)11 


i>\i  II   I n 


to  thr  As'H-inlili/.   Iiihl  11  ri<jl,t  to  .sif   h,   h 


'iitr- 


'I      'II  II   lull  ri 


■fill  Of' 


a  I 


To  the  Uiirht   H 


'riiiu  ill    I'^iii/ldiii/. 


onoriihle   the    liords  (. 


Trade  and  IMaiitation,- 


•  iniinissioners  for 


May  it 


please  vour  l,ordship 


I'lirsiiaiit  to  M)ur  Lonishi|>s'  desire,  signiiicd  to  ns  I 
Ml    I'nwn  dl.  in  his  lett«'r    of    the  L'oth    in-tant, 
'""''    lliat   \our    Lordships  hail    le.cived    ahttcil 


'V 


■I  ting 


^li      Kiiowles.  ( 


J, 


loveriior   ol   Jamaica,  dale<|    tl 


r<nii 


i<    L'  ith  of 


miaiN   hi.st.  ac(pminting  your   Lordships  wiih  his  hav- 
iiL--  dis.solvi'd  the  !.MM,.,,i!..l .    of  that  Irdand 


1(1  a  seconit  I  iine 


iillj    c 


ont-uinng  his     'asons    for  such   di>soluti.iii  (a  copy 


||    will,  h  letter,  uiul  llie  other   pain-is  iiiclo.M;d  h 


>  us,  are 


sf 


\i\ 


294 


Or-iMONS    OF  EMINKNT  I.An'VFr;^. 


herewith  iTtir  mnl.)  (le-ii-inii.  urn-  ()]Muion  whetlier  Mr, 
Dawes,  the  uentlomim  luciitiomMl  tlicnMn.  l>_v  having 
been  oonvirted  in  Enuland  of  uft<'ririsj;  tieasonalile  ex- 
pressions a>;-ainst  Hi<  Mnjcsty.  ami  -ciitenceu  to  enter 
into  reeojjjnizMiii'e  tor  hi-  ^ood  hfliaviom- lor  soveii  ycnrs, 
is  disqiiahlied  duriii'^  tint  term  I'roni  ii'Mni;  rlcctcd  into, 
or  sittini^  in.  tlic  ii<s<'nil)ly  of  .laiiiai'ii.  'n'  liaviiiLT  taken 
the  oatlis  to  His  Majesty  and  made  aud  --ul)-cril»ed  tlie 
dechiration  and  talvcn  ami  ^uhscrilied  the  oatli  of  ahju- 
ration  ;  we  lia\  r  tai<('n  tlie  ^iiimc  into  our  consideration 
and  arehnmtily  of  opinion,  that  tliouLili  the  said  assem- 
hly  ndjjjht  in  theii-  discretion  have  cNjielh'd  the  said 
James  Dawes,  in  c()n<e<nicii<e  of  tiie  said  jud-nncnt.  yvt 
that  the  same  was  no  h'-al  ohie(ti"n  to  liis  riiiht  ,»r  en 
pacity  of  sittinfij. 

April  2'.'.    lio").  W.   Mi  uhav. 

Ki(  M.    Li.ovn. 

(S.)  7/ii  opininii  <it'  tlif  Altiirii  »i  iiikI  Sjliiit<>r-<  II  III  ml 
Niyrthi  ii.iiiiil  IliiiiiHiri,  hoir  j'ur  n  rcprefi&fifcfii'i,  ii!>.si ut- 
imj  hitiift/j,  iiiiiij  J'C  juiiilxluif. 

To  the  Kif^lit  Hon.,  tiie    Lord--  Commi^sioneis  for  'I'ra  Ic 
and  IMantatjoMs, 
My  Lonis  : 

in  hnmlile  ohnhence  lo  Her  Maje^lv  s  eoiimiand.--  ill 
eoimcil  .siL,Mihed  to  ii-  li\  \oiii  Lord-lnp-'  >ecretary.  \\t' 
have  consiih'retl  wlial  methoil  nmv  lie  piopo-ed  lor  pun- 
isliin^  siiidi  mem'ier>  o|  the  af«f<emlil\  of  liailudoe-.  a,- 
wilfully  aliseni  i  hem-el\  ■  -  lioiii  the  lid  a.s>endily,  wiucli 
eonsistin;:  of  (svo  and  !«ent_\,ai!d  lifteiii  lie!ii;f  rej>ut','d 
thi're  to  he  necessary  to  lie  nie-eiil  eiuht  of  tlieni  ahseii- 
tvd  theiiiHelvcb  vohuttanU,  ami  ihereh^    tiu>  liroouudiugs 


^ 


OF  THR  rOt.ONIAI,  CON  ,TlTUT[()i\s. 


295 


Of  the  iisseiul.ly  have  been  il.r    n    Ion-  time  obstructed  • 
and  we  do  liinnbl.v  report  t.)  yo,,,  i^ordships^,  that  the  as- 
sembly in  JJarbadoes  bej^am  and  liatli  been  continued,  by 
virtue  ..rthc  eanuni.ssions  .jrranted   from   time  to  time  to 
the  (u.v.MUors  or  tliat    island   by  Her  Majesty's   prede- 
cessors, iuid  by  ih>r  Mnjesty.    whcref.v  the  Governor  is 
enabled,  by  the  advice  of  Her    Majesty's    council  there, 
to  summon   and  call  .^^ciiiT.i!  a>M.mblies  of  the  freehold- 
ers an.l  planters  (here.  an,l,  with  the  advice  and  consent 
ufthe  said  <'ounci'  and   as.<embly,  ,„•  the   major  part  of 
them,  to  make   laws    |nr  the   public  p^ace,  welfare,  and 
,-ood  -overi.ment  of  that  island  ;  and  the  nundn'r  of  per- 
sons of   the    assembly   bein-   (wo  and    twentv,   twelve, 
bein-  the  majority  ..I' (hem.    is  .uiVu-lvnt  to  be  present,' 
Mud  the  appointing  (if(c-er.    (,.   be  n.-cessarv.   which  was 
.ion,-  by  an  order  of  the  assembly  as   we  are  informed, 
=>'.'i  not  by  order  ..f  Her  Maiesty  „r  her  predecessors,  or 
by  any  act  uf  (he  asseuddy  c.nlirmed    by    I ler  Majesty 
-!•  her  royal  pre.leces.sors,  is  irre-ular.  and  could  not  al- 

';■'•   •'"''i"'"'ni  a^.poinh'd    by    Her    Majesty's   commis- 

-ion. 

As   (o   (!,.•    case   ,,r(he   abM.nlee<.   w,.    ^e   humblv  of 
"I""""'  that  tbevben.^   .'boM.,,  au.l    bavin^^  accepted  of 
<'"'l''-><''-^nHl  a.imi:   in   the  a.sseud.ly  and  v  ilfullv  ab- 
scndn-  (hemM'lve^  wiil„,n(  any  just   oecasin,,,  (o  ;„e  („- 
'^|1   obstruction   of  ail    bu-ness,   tli.-y    nrv  -„iltv   of  an 
'''-''  "''^"   '"cauM     in    tUr   ev,.entinM   ni  of  (he  'frust  in 
''"■".  lepornl,  n„d  eo„t,.,npi      f  He    MajeHtv's  roval  au- 
''"""■'       ="'"'  ""  "■  '"'"'U-  u..puu. T  expresslV  l-.l^ed    l-v 
ll"|-  Majesty     ,n    I  be  a^M-,ub|y    tn   ,„>,.,  b    su.'h  ...tences, 
"->    .nay  be  proceeded  a^aiuM  in  1  Icr  Majesty'gordina- 
'V   courts  uf  justice   then',   and  punisbed  ,,y  rM"'.e  and  im 
pi  isonment. 


Ik 


t 


f  i 


i«'''--id  •■ 


29(5  Ol'tXIOXS    OF    EMINENT    LAWYERS. 

But  wlii'tlior  a  i)r()sociition  of  an  assemblyman  in  the 
courts  nt'  justice  d'  that  Island,  w'thuut  any  a]>[)licatiun 
from  the  assembly  to  H  '•  Majesty  or  her  Governor 
there  for  that  purpose,  may  not  te  id  to  Her  Majesty's 
diFPervice,  by  ereatin<r  an  mieasniess  in  the  i)re-cnt  and 
all  t'litui-e  a>.-eii\Mies.  and  occasion  an  un\villin<!;ne<s  to 
serve  therein,  is  most  hmnbly  sidmiit.ed  t"  ller  Majes- 
ty- 


Febniarv  1,  170-1-5. 


,^ir: 


KdW.     NoitTHEV. 

S.-vM.  Haiiloikt. 


Some  iiuMubtMs  of  the  late  assembly  of  B.irbadoes 
haviiiii-  ii)>|)li>'d  1.1  me  on  behalf  of  themselves  and  the 
re>t  o:'  the  ab-cntinj;  members,  and  repn'snited  that  a 
matter  of  fuel  stated  in  the  report  lately  m:nlc  by  Mr. 
f  olicitor  and  Hivself  hath  been  misrepresented,  Ibr  that 
tlu'  .-aid  assemlily  hath  power  to  punish  thrir  own  mem- 
bers, and  tluivloiv,  they  desire  an  opportunit\  !>  make 
vu\  tlie  .^ame  ;  1  am  content  that  tlie  said  rej^ort  m."  be 
reviewed  and  altered  ,.<  justice  shall  reipiire,  which  1 
deciire  you  to  coiiiniuni(  tte  to  the  Lord^. 

KUW.    NoKlUEV. 

Februarv  '.I,   170  I. 


i  i 


will  tin  r  the   A'<»t"nil'!ij  of  So'th    ('droliiut    <ntif</  ./,;iid 
monri/  l<>  til'   I'-i!'  "/  1^'i'jhts  Soci4>tii. 

Quo.stions  nrising  out  of  the  foregoini: -tate  o*"  fnets, 

and  11  H,n  wbieli  .pie-'tioM-*  the   opinion  o|' A ttMrney-( b'n- 

eral  is  desired  nrc  : 

W  betlier   under  the    eircumstflruM'.s  almve   mentioned, 
th.j  e,,!!.M!on    liou.-e  of  the  assemlily   of   South  ("iimbna 


> 


OF    THE    COLOMAI.    CONSTITUTIONS. 


20'; 


can,  or  ovo,  could,  legally,  by  an  order  of  that  house 
alone,  not  concurred  in  hy  the  othor  two  branches  of  the 
legislature,  appropriate  to  specific  public  purposes,  any 
sums  of  nir.uoy  for  sucli  ])ublic  purposes  of  the  colony  as 
tiie  said  coumions  house  of  general  assembly  might  tliink 
lit  /  If  tins  (pic^tion  is  answered  in  the  aflirmative, 
thcn.picsti.m  whether,  und<'r  the  above  menti<med  cir- 
cuinstances,  the  foregoing  order  ofth<"  said  eonnnons 
house  of  assenddy,  on  tlie  Stii  ,.f  December  last.  Tor  the 
purpose  therein  menti<med  and  thereby  intended,  is 
warranted  by  law  and  the  e(mstitution  .'  If  not,  wdiat 
remedy,  in  either  of  the  cases  stated,  can  be  legally  and 
coiistitutiiinally  applied  in  a  matter  of  so  great  imi)ort- 
aiK'e  to  His  Majesty's  government  and  the  future  well- 
being  and  security  of  the  colouy  of  South  Carolina  > 

ist.  I  am  of  oiiinion.  tha^  tli."  house  of  ;,svend)lv  of 
South  (  arolina  cannot,  by  the  constitution  of  that  colo- 
ny, without  the  <'('ncurrence  of  the  governor  and  council, 
legally  dir.  ct  the  treasurer  of  (he  colony  to  issue  out  ol' 
the  l)alance  orsurplus  ol' funds  arising  from  taxes  <;rant- 
(d  to  the  Kiiig,  and  appiopiiated  by  f|ie  legislature  of 
the  colony  to  certain  puldic  services,  aiiy  sums  of  mou- 
c\  for  su(d'  other  public  j)urposes  of  th<'  cid.  i\  as  the 
lh.u-.e  of  assendly  shall  alone  think  lit.  Sucdi  a  jx.wer 
U"uld.  as  1  conceive,  be  contradictor\  to  the  lirsf  ;,,id 
I'lin  til  arti(de.>  of  the  couuui  — ii>ns  and  instructions,  i-e- 
piiguaut  to  the  natmc  of  the  )j:raid  by  wlii(di  the  surpbi.s 
must  reiui'in  di<po-able  b\  il,,'  siiiu'  ,iuthori,\  uhich 
i.ii-rd  il.  and  caiuiMl  I  think,  be  wariant.d  i.\  the  hiod- 
<n\  piactlce  of  a  I'W  _\iMrs,  iiic-ularlv  introduced  and 
Hii|ii  o\  icji'iil  1\   acijiin-ced  in 

-d     I  think    the   order  of   the  as>embl\ .  of    lb.    Sfh  of 


il 

'   il 


>  ■  !■ 


t. 


i!  ^'U: 


t  5  ! 


•  eeemliei' 


la.f 


Is    not      tr 


rt.,J 


^ 


298 


OPINIONS    OF  EMINENT    T-AWYERS. 


ml:. 


B   '' 


not  only  as  they  cannot,  in  my  opinion,  legally'  issue  the 
j,ul)lic  treasure  hy  their  sole  autuc.ity  but  as  the  sum 
is  directed  to  be  paid  out  of  any  money  in  the  treas'iry, 
without  regarding  the  payment  of  the  appropriations 
mentioned  in  the  act  of  assembly  ;  and  as  it  is  to  be  ap- 
plied not  to  the  particular  service  of  the  colony  and  the 
.  upport  of  the  government  thereof,  but  to  be  remitted 
t<.^  Great  Britain,  for  the  vague  and  indefinite  puriWoC  of 
supporting  the  rights  and  lilxirties  of  Great  Britain  and 
America,  to  be  ascertained  by  the  arbitrary  pleasure  of 
seven  particulaf  ix^rsons,  and  without  any  immediate  re- 
ference to  the  service  of  that  colony. 

3d.  If  the  order  of  payment  of  thr  money  is  not  war- 
ranted by  law,  the  payment  cannot  be  legal,  and  the 
troasmer  has  issued  the  money  without  authority  ;  but 
it  would  be  hard,  after  the  late  aecpiiescence  in  the  or- 
ders of  the  assembly,  to  make  the  treasurer  liable  to  the 
conseciui'uces  of  a  wrong  {xiyment. 

What  preventive  measures  for  the  future  may  be  most 
conducive  to  the  service  of  tb  •  colony  ami  of  His  Majes- 
ty's government  and  to  prote<'t  the  subjint  from  the  rep- 
etition of  such  exactions  whetherby  the  parliament  here, 
or  l»y  instructions  to  tlie  Governor,  must  be  submitted 
to  the  wisdom  of  His  Majesty's  servants. 

Wm.  Ue  Guev. 

Febrinrv  13,  1770. 


OF  THE  COLONIAL  CONSTITUTIONS. 


299 


(10.)  S'mrnl  opiniom  on  the  net  of  the  Maryland  As- 
Hcinhbj,  -fo7-  the  cslabllshmeut  of  religious  tcorship,  accora- 
ingtothe  Church  of  England:'  Tlu:  Jollowing  facts  may 
be  premised,  as  tlie  case  :  King  William  deceased  on  tlie 
Qlh  of  March,  1701-2;  the  Assembly,  which  iros  thereof, 
ler  ccdled  i,i  the  usual  manner,  met  on  the  I7th  of  the  same 
month,  and  during  its  sitting  passed  the  net  in  question, 
without  the  possibility  of  lomcing  that  such  an  event  had 
taken  jdace.  Governor  Seymour,  the  successor  of  Governor 
Blachstonc  n-ho  summoned  th:,  assembly,  ujmju  his  arrival, 
on  the  ntk  of  April,  \~^X,fnind  the  same  Assembly  exist- 
ing  that  had  been  called  by  his  predecessor  in  the  name  of 
King  William  :  so  that  there  verc  three  several  sessions  of 
Assembly  held  after  the  demise  of  Kn>g  William,  to  icil,  in 
June  \m2,  in  (><'-)Im:i,  170;},  and  in  April  1701. 

b\v»i.—  The  opinion  of  Mr.  JMlyday,  an  eminciU  law- 
yer of  Maryland,  on  this  subject  : 

King  WUliani  diod  the  Sth  day  ..rMur.di,  in  the  joar 
of  our  Lord  1701.  On  the  IGth  day  of  the  sanio  numth, 
an  assembly  met,  under  Governor  Blaekstone,  and  con- 
tinued until  the  2otl.  of  the  said  month;  in  which  was 
made  the  act  for  the  establishment  of  religious  worship 
in  this  province  according  to  the  Church  of  England  and 
for  the  maintenance  of  ministers.  Two  (juestions  con- 
cerning this  net  h;ae  hitely  been  stirre.l;  whether  the 
act  be  in  I'oree ;  if  it  be.  whether  the  Slierills  can  exe- 
cute for  tht>  ii.rty  pounds  of  t~^Kwrn  per  poll,  establish- 
eil  by  (he  act  for  the  maiuteiiimce   of  ministers. 

'I'll.'  nbjirtion  to  the  validity  of  the  act  I  t^iko  to  be 
foiuKJ.d  on  the  fa<-t  of  the  King's  d.-mise,  whereby  it  is 
supi)used  that  the  assembly  was  dis.solved,  and  therefore 


the 


act    Iliiule  bv  I 


M^rMiiiKii 


1 1 11X71 


.1..*: 


}00 


Ol'IMONS  OK   EMINENT  LAW  VERS. 


'J 


am  ol'  oniiiioii. 


tluit 


le  utoivsaid  act   is  in    loroi 


If 


tl 


10  ohjection  (li\".\vn   I'nmi  the  domis-^   of  tho   Kiii""  can 


be  ()l)viatc(l,  and  it  can  be  shown  that  the  act  had  the 
validity  of  the  law  when  it  was  made,  I  conceive  it  will 
folic  w,  that  it  is  still  in  lorce  :  there  is  no  limitation  of 
its  continuance  in  point  of  time,  it  is  therefore  a  perpe- 
tual law,  and  1  ilo  not  know  that  it  has  l)een  repealed 
by  any  sul)sequent  act. 

At  the  lime  of  i\\v  Kinir's  d(>ath  his  Govtrnor  lierc 
w'as  actinii'  under  bis  commission,  in  (■.)nsc([uence  of 
which,  lie    >v,is  invested  witli   tlie    roval  antliorit\',  had 


ower  t 


t 


o  law; 


o  cal 


and 


prorou'ue  an 


il    d 


issolvo 


-iSL'i 


nbl 


le.- 


assi 


lit 


tl)  exercise  the  other  functions  of  the  royal 


cai)acity  witliin  this  pi-oviiK 


and 


I 


appreliend 


that 


so 


loni:' as  that  commis>i(m  rcinaiiu'th  in  force,  all  acts  done 
b\-    virtue    o|"  the  iiowers    cU'iixcd    from    its   words,  are 


^ood   and  \alid.      1  ha 
mise  o['  tlu'  Kim:",  all 


V(>   no  diiubt    but  that    l)y  the  de- 
commi-sivtns    granted   l)\   him  (hi- 


rinir  pleasure  would  ha\e  determincHJ,  unless  provided 
lor.  But  by  an  act  of  parliament  made  in  the  sevt-iith 
year  of  his  rei,i;n,  cap.  ^7.  it  was,  amonust  other  things, 
enacti'd,  that  no  commission,  eitlier  civil  or  military, 
should  cease,  determine,  or  be  voiil,  by  the  (U'ath  or  de- 
mise of  his  .said  Majesty,  or  of  any  of  his  heirs  or  suc- 
cessors, Kiiit^s  (tr  Uui'iiis  of  Kniiland  ;  but  that  evi'iy 
such  commission  should  be  continued  ami  remain  in  full 
forci'  for  the  spaci'  of  six  months  next  after  siicli  dcatii 
or  (K'nii>e,  unlc-s  in  tlu>  mean  tiiiu'  superseded  b\  th(> 
next  immediate  successor.  And.  by  an  act  made  in  the 
first  _\car  of  t^ieen  Anne  by  the  parliament  that 
siti  iiui'  w  1 


W.'S 


leu  i  ue  i\im:(lii'd,  and  m  that  same  ses.sion,  it 
»vas  enacted  tiiat  all  .  id  siiiL'ular  the  pro\  i.siniis.  clauseH, 
mattvrs  t*»  thiiiics  whatever,  contuined    in  the  aijuve  re- 


OF  THE  Cdl/  NIAL  CONSTITUTIONS. 


301 


cited  part  of  tlyj  act,  of  7  W.  III.  sliouM  c-.xtem],  and  be 
con.stnu-d  to  extend,   to  the  kiiiKdowi  of  Ireland,    to  the 
Islands  of  Jersey  and  Guernsey,  audtu  all  His  Majesty's 
dominions  in    America,  and  elsewhere.     Bv   these  pro- 
visions,   the  Governor's  commission  Wiis  in  full  iorce  at 
the  time  of  making  the  act  in  question;   it  did  not  cease, 
or  determine,  by   the  demise    of  the    Kini^-;  for,  if  the 
general  words  of  the  act  of  7  W.  Ill,  did  not  extend  to 
commissions  in  the  plantations,  they  were  undoubtedly 
extended  to  them  by  act  of  Queen  Anne,  wJiich,  by   ex- 
press provision,   was     lo    have    its   operation  and  com- 
mencement on  the  8th  day  of  Mareli,  on  which  dav  tlie 
King  died,    so  that  there    wms  no    interval  of  time  be- 
tween the  death  of  the  King   and  the   making  of  the 
act  here,  in  which  the  Governor's  commission  was  not  in 
full  force.     And  I  am  of  the  opinion,  it   will  follow  from 
hence  as  u  necessary  consequence,  that,  by  the  demise  of 
the  King,  the  assembly  of  this    province    was    not  dis- 
solved; lor  the  reason  why,  by  the  death  of  a  K,        the 
parliament    was  dissolved  (until  the  case  was  provided 
for  by  the  statute,)  was,  that  he  being  considered  in  law 
as  the  head  of  the    parliament,   that    failing,  the  whole 
body  was  extinct.     But  the  reason   does    not  subsist  in 
this  case,  for  the  politic  cajjacity  of  the  King,  in  which 
only  he  can  besaid  to  be  the  head  of  the  parliament,  was 
still  residing  in  his   Governor   here,  as  fuliy  as    it  had 
lieen  at  any   time  during  Ids    life;   the  [Governor's  coin- 
imssion  wi.s  from   the  King   that  coiiiinission  was  in  fidl 
force,  he  was  invested  with  all  tlu'   powcr^  derived  lioui 
it  originally,  amongst  which,  that  of  legislation,    calling 
assemttlies,  and  as.sentiiig  to  laws,  was  one.      The  Crown 
whilst  the  government  was  in  it.s  hands,  and  the  Propri- 
etaries, in  the  time  of  their  administialion,  iiavt- exer- 


III 


,i.r»s-!  ,  .Bar! 


m 


'  'I 
i] 


Mfl 


302 


OPINIONS  OF  EMINENT  LAWYEKS. 


■r^ 


t  Sfl^k^^E 


It 

k> . 

■    3 

^    1 

^^I^H  '     I^H 

cised  a  power  of  dissenting  to  laws  passed  here  by  their 
Governors  :  but  I  have  ntn^er  understood,  that  the  as- 
sent of  the  Crown,  fir  Proprietary,  was  thought  necessa- 
ry to  the  validity  of  an  net  of  assembly  to  which  the 
Go\  ernor  had  given  his  assent,  such  act  having,  to  every 
purpose  the  force,  and  o})ligation  of  a  law,  unless  dissent- 
ed to  by  the  Crown,  or  Proprietary  ;  and  I  think,  that 
this  being  the  case,  it  may  fairly  bo  inferred  that  the 
Governor  here,  acting  under  a  commission  from  the 
Crown,  stood  in  the  same  relation  to  the  other  branches 
of  our  legislature,  as  the  King  does  to  the  other  branches 
of  the  parliament ;  that  he  nuist  be  considered  as  the 
head  of  the  assembly,  in  the  same  light  as  the  King  is 
of  the  parliament;  and  that,  therefore,  the  legislature  of 
this  province  remained  complete  and  perfect  notwith- 
standing the  demise  of  the  King  :  nor  will  it  follow  from 
this  reasoning,  that,  by  the  death  of  the  Governor,  the 
assemblv  would  be  dissolved,  because  the  powers  of  a 
Governor,  though  perfect  and  complete  whilst  they  con- 
tinue, are  but  delegated  and  derived  from  a  super'  ,  to 
whom  they  result  immediately  on  the  deatli  of  the  Gov-. 

ernor. 

I  have  heard  of  an  objection  drawn  from  the  style  of 
this  act,  "  it  is  enacted  by  the  King's  most  excellent 
Majesty,  &c."'  but  I  think  this  objection  is  oflittle  weight: 
the  King  is  here  named  in  his  royal  and  politic  capaci- 
tv,  which,  at  the  time  of  making  the  act,  it  was  to  this 
purp<ise  residing  in  liis  ( Jmciiior,  who  then  enjoyed  and 
exercised  the  functions  ot"  it  in  this  province  ;  and  the 
personal  assent  of  the  King  was  not  necessary  to  the 
act.  Further,  Ibis  act  bus  always  been  allowt'd  and  re- 
ceived for  a  liw  :  the  101l)s.  of  tobacco  per  poll  has  al- 
ways   been  collected  by  virtue  of  it  ;  and  parish  as-sess- 


OF  THE  COLONIAL  CONSTITUTIONS.         303 

inent.s  for  a  long  time  made  xuulcr  it  ;  the  being  and  au- 
thority of  the  vestries  for  seventy  years  past  have  been 
derived  from  it  ;  uuiy  duties  are  required  of  these  by 
subsequent  acts  ;  and  some  share  of  our  civil  polity  de- 
pends upon  the  existence  of  it ;  it  was  expressly  except- 
ed out  of  the  general  repeal  in  1704  and  hr.  been  re- 
ferred to  and  made  the  grouuL^-work  -f  manv  later  acts 
of  assembly.  This  long  unin'  -rupted  allowance,  and 
frequent  recognition  of  the  validity  of  it,  leave  no  room 
to  doubt  of -Jie  unilbrm  sense  of  the  i>eople  and  opinion 
of  the  legislature  with  respect  to  its  existence,  and  fur- 
nishes a  strong  argument  against  questioning  the  force 
of  it  at  this  time  of  da3\ 

As  to  the  second  question  :    By  the  act  of  1702,  sect. 
3,  for  the  encourag-ment   of  faithful  and  able  ministers, 
laboring  in  the  wor  c  of  the  gospel,  to  come  and  reside 
in  this  province  ;  it  is  enacted,  that  u  tax  or  assessment 
of  401bs.  of  tobacco   per  poll,  be  yearly,  and  every  year 
successively,  levied  upon  every  person,  &c.    and  paid  to 
the  minister,  &c.     And  the  act  directs,  sect.  G,  that,  for 
the  better  and  m.u-e  eifectual  collecting  of  the  duty  of 
401bs.  of  tobacco   per  p.)]l   an.l  paying  the  same    to  the 
uses  intended  ami  appointed  by    the  law,  the  sheriff  of 
the  county  shall,  and  is  obliged,  to  collect   and  gather 
the  said  assessment  of  the  several    persons  within   each 
respective  parish,  in  the  same  maimer,  and  by  the  samo 
authority,  as  the  public  and  county   levie>   are  collected, 
and  shall  pay,  .^c.      It  could   s.Mrce  be  imagined,  that  a' 
nunister,  who  had  a  c()mf„ital)le  establishment  in  Eng- 
land,  would    be    induced  to  come.verto  this  province 
ior  the  sake  of  the  jM'ovi.sion  ma(k'  by   this  act.     Those 
who  should  come,  it  might  be    expected,  would  be  such 
as  from  their  circumstances  uuist  depend  on  their  sala^ 


i  i 


i 


30 1 


OPINIONS    nv     EMINF.NT     LAWYERS. 


ry  for  the  support  of  themselves  and  tlieir  families. 
Hence  a  necessity  tliat  this  should  \ie  annually  collected 
and  p.iid,  an<l  that  some  power  should  bo  placed  in  the 
hands  of  the  slierifY  who  was  to  collect  and  j,^ther  the 
401bs.nl' tohacco  per  poll,  by  which  he  might  in  a  spee- 
dy and  suiiiniiiry  way  enforce  the  payment  of  it;  and  I 
have  no  doubt  but  that  this  Avas  done  and  that  the  sher- 
iffs had  power  to  execute  for  it  The  act  docs  not,  in- 
deed, in  express  words  give  a  power  ;  but  the  sheriff  is 
obliged  to  collect  and  gathe''  in  the  same  manner  and 
by  the  same  authority,  as  public  and  county  levies  were 
already  collected,  liie  words  are  in  the  ?ame  manner; 
and  by  the  authority,  have  a  plain  reference  to  the  mcfde 
of  collecting,  i.  e.  compelling  the  payment  then  in  use 
and  practice,  which  was  clearly  by  way  of  execution,  or 
to  some  law  thou  '  l)eing  which  pointed  out  a  mode  of 
compelling  payment,  or  to  both.  I  have  met  with  no  law 
which  does  originally  and  expressly  give  a  power  of  ex- 
ecuting for  i)ul)lic  and  county  levies,  or  point  out  any 
1)  xle  of  compelling  payment.  If  8uc'>  an  one  can  be 
found  to  have  been  existing  when  the  act  of  ^.^-,was 
made,  it  might  perha))s  put  an  end  to  this  question. 
If  there  was  no  such  law  in  being,  the  mode  referred  to 
must  be  the  usaLie  and  practice  of  the  time. 

The  act  of  lOOO,  of  directions  fo.  the  sheriff's  office, 
which  was  a  per])etual  law,  and,  I  apprehend,  Cfmtimied 
^n  force  until  it  was  re-enacted  in  1704,  does  jdainly 
prove  the  uioilc  then  in  use  and  practice,  to  have  been 
bvexccutio.  It  restrains  the  sheriffs  from  seizing  to- 
bacco uusliipptd,  or  marked  for  merchants,  or  others, 
for  any  ian>o  except  levies,  and  gives  him  r  {lowor  to 
break  lot-Us  in  order  to  seize  tobacco  for  public  levies. 
This  law  was  itgain  le-enacted,    .«o    far  as   concerns  the 


! 


OK  THK  UOLOMAL  CoNSTITUTIiJ.Nft'. 


305 


ce. 


•) 


itl 


tl 


pi-cseut  .jue.stion,  with  son 
a  perpctiiiil  law  now  in  fur 
restrained  from  .sei/in<>-  to) 
cause  except  levies  due  to 
or  for  the  40lbs.  ol  tohiu-ci 
he  is  empowered  to  hreuk 
coibr  le\ics  and  dues  as  ail 

In  ](i!,)!),  the  law   of   17 

tion  was  confined  to  le\ii'- 

4()ll)s.  of  tobacco  [)er  poll  I 

was  t<j  be  collected  and  '^n 

And   ])y  sect.   5   of  this  act 

way  of  execution  any  pul)li> 

the  body,  goods,  or  cliatlel 

he  has  made  a   demand  llu 

dav  of  February.     The  4( lib 

oiAittiul,  and  I  couci'ive  wit! 

might  know    without    denu 

mini.ster.     Rv  the  act  of  1  7i' 

ot  this   law  are   to    be  le\  ii.' 

execution,  as  other   public  d 

the  act  of  1724,  cap.  21,  no 

fee  or   reward    ibr  executin,^ 

levies  or  any  j)ublic  dues  oi- 

cites,  that  several  sherills,  tn 

had  executed  several  person 

ics  and  oilicers"   l\'v<.  and    li; 

thereon  ;  and  that  the  powci 

be  used   in  oppre.ssion  of  the 

the  sherill'  t-  collrct  the  pub 

with  greater  liieilitv.      ('.sife 

expounders  ofn  law:   the  u.sj 

ly  proved  by  tlie  acts  of  assembly 


le  addition  in  17  lo,  cap.  -iVi 


i)V  whicii 


tl; 


e  sheriiJs  are 


icco  unstripped,  c^'c.  for  any 
public,    county   or  2'arisli, 


tlu 


>per  poll  to  the  minister:  and 


in  Mi-drr  to  seize  to! 


K.C- 


resaul 

not 


>ein<>-  m,! 


ie    tl 


le  excel  1- 


I  1). 


it   inclii 


(le- 


the  minister,   be 


cau.-e 


the 
that 


lei-eil   in    (lie 


le  sliL'ri 


ff 


!iai 


am>'  manner. 
1  not 


(lue> 


or  ohicers    it 


levy  hy 
s,  upon 


of  any  iuliabiiaiil,  e.\ce))t 


rc'it 


at 


bel 


or. 


the  2nth 


s.  of  tobacco  ])er  poll  is  hen 


1  (1 


ign,  because 


>  e\  ci'v  man 


ind    Avhat  lu 


was  t 


o  i)a\- 


tl 


ic 


5.  I'iip.  1(1,  linv^  for  brea(die^ 


d 


ue: 


)y  the 
are  t 


ncfiii. 


i)\'  waA"  o, 


O    lu,' 


le\  i!M 


1.       IJv 


iK'i'iir  shall  b,.  alln-.vi'd 


»r  aiiN    jnibii 


or  CO 


oilicers"  fe( 


reasf 


Th 
tl 


i.'e-  lo  tliem-e!\e 


liny 
uut'> 


ict  rc- 
b 


s  for  public  and  (>oiiiit\   lev- 
1    chai'ged    exccuiion    f 


exciM 


ees 
til  n    ouubt  nut  vo 


eiiai 


peiijde.    but  only  {• 
lie    dues   and  oilicers' 
is  .Slid  to  be  o,u'  oftlu^  1 
ige,  iu  this  ca.se.  i-  ikii 


I'li- 


abovc  referred 


l'»,  wliieh 


F' 


I  !  U 


!P 


!  n!i- 


ii 


30G 


OPINIONS  OP  EMINENT  LAWYERS. 


at  the  .■ianuMiii"  that  tliev  cviiioo  the  fact,  shew  the 
srnsf  oi'th.  k',i;islatiux!  witli  iH'spoct  to  tlic  h'tfality  of 
it.l)ut  iiiiulit  Ih'  appoaU'i'  lor  to  the  ex|)erienc'e  of  every 
man  in  th;' c  unify  wlio  li\  mI  ami  was  conversant  in  husi- 
ne-^s,  ncfore  the  in>|)ecti.  ii  l;i\\'  of  1717  took  [)lace,  the 
shei'i'l's  used  to  c\(enfe  hody  or  f:^oo'is.  as  h<'  Uio(iii;ht 
ni''  t  effectual  for  olitahiinii' ]>;iynii'nt. 

'I'o  d,aw  this  iiiatli'i  into  a  nari^w  c  )iiipass.  the  terms 
tax,  assessuKiii,  1<  \  y,  a-  i.-cd  in  tiic  :u'f.  convey  an  idea 
of  soiiietliinu' coin[iid>oi'y.  Th^'  sheriff-,  In  the  act.  are 
ohliired  toeollfct  thi--  tax  and  t"  pay  il  annually.  The 
purpose-j  to  which  it  is  applied,  recpiiicd  th.it  ii  should 
he  mmnally  cojlectcil  an. I  piiid.  V  cotipMl^ory  power. 
theret'ore,  in  the  hands  of  the.  iierMf.  was  necessary  to 
eiial>le  him  tt»  (li-iehaijr*' this  ohliuafion  ;  the  law  j)laiply 
intondo<l  to  >j;iv"hini  a  compulsory  power.  Of  what  na- 
ture wa'^  It 7  I  cciiceivc,  for  the  rens(>ii>  a>sii:#d. 
a  power  to  exc  ute  lioily  iir  puids,  its  si i  u Id  I"'.-  nio-^t 
<'ouduci\c  to  the  end  .lad  pii.  [O.sc.-i  of  lii'    [lower. 

.Ia.nu:-   lloM,^ll\v. 
August  I,  1 77-. 

Secimd 

Sk<  Il  In  s-   ilt'    nil    lllUIH  nil  III     nil    llli\   flllliJK  tjnj    Ml        Pllli 

iel  Jhddini,  (>!ii  of  till  iil'fi  •<l  laivyei'N  irhiih  Ainrnn 
evrr  prminccd.  (tfUv  he  Iniif  n  tired  trom  tin  I'lir. 

Qunre  — W'lu'ther  the  validin  ofthe  iut  of  l7ltlTiia\ 
not  he  usse»"ted  on  the  |innciphs  of  the  ciannion  law. 
though  tiie  (io^ernoi's  coiuinisMon  t'li  in mnu'd  on  tlie 
royal  demise,  ina^iuuidi  as  «hi'  uicetiun  oi  the  as^eaihlx 
and   passin;^  the  act  were   uureeahi«    to    the  eounnissi(ai 


OK  THE  COLONIAL  CONSTITUTIONS.  307 

while  in  force,  and  happened  before  notice  of  tlie  royal 
demise  1 

Defendant  in  assize  pleaded  a  recovery  before  commis- 
sioners of  oyer  an<l  terminer  of  damages,  wherein  one 
moiety  of  the  land  demanded  was  on  oligit  taken  into 
<>\-eciifi.)n  &c.  The  ])laintift' replied,  that  after  the  .-^aid 
eoiumissicn,  and  before  judgment,  another  eonnnission 
issurd.  ic.  Fish  i)riiNe.l  judgment,  be.vuise  the  plaintiff 
did  not  allege  that  tbc  first  commissioners  had  notice 
bef.Mc  jn  Ignirut  of  the  second  conmiission  ;  bcrause, 
though  tlu'  second  commission,  when  i-xeeutt-d,  ]ia>,  to 
some  piiri)oses,  relation  to  the  date,  yet  the  acts  done 
imder  the  first,  before  notice,  were  guod.—So  adjudged, 
34th  As.  I'l.  S. 

binder  a  eonnnission  to  examine  witnesses,  the  com- 
mfcsioners  began  the  examination  the  L'.Sth  of  March, 
Kl'i),  the  day  after  King  Jamess  dcniise.  but  before  no- 
tice of  it.  AgiTc.l,  the  commission  wn.s;  d-tenniiicd  bv 
the  loyal  demise,  with(ait  any  notice;  but  held  tiiat  the 
protH'edings  bcf,.i(.  uoti.,  were  i^ood.  and  that  the  wit- 
nesses, ifiK'ijuiv.l,  ini-bt  be  punished.  bccau>.' cNMiniiia- 
li'-n  bci;  V  not!,,.  ,,ftli,-  ro\;i|  .|,.|iiisc  wa-^  legal.  (Vow 
''■  ^'•'■'""i-     <"'"   ''■•'i-   ''7    in   w!:i(  h  i.il,     .\,^s.    is    reUr- 

1C(|    to. 

An  attai-hini'nt  -^ur  I  nut  in  the  time  of  ( 'ar  II  and 
executed  at  K\eler  (hiv  .l.i\.  alter  iiis  .jeiui-e.  but  be- 
'""'■'•  ""*''•>'  "I'  ''.  Ii''ld  I"  I'C  goo.i.  \UuvU  r  M.is  |M.\\.|er, 
1    \eiii.    KM)    in  u  bl(  ji   the  ca.>-e  in  ('id.  i.^  eited 

A  (•oiinui.-.siou  t.i  AliiieiN  to  ,  N.niiine  wilne-<-e>  Tiie 
pliiintilfdicd  bet,,ie  the  csaminati..u    I-ut     ibe  uitu,.v.,- 

* ''"•'""'■'      ::•;;'.■     t!i    ;;;..;;;,;;  ii  t   iioi(      i  i     j  j.i 


i 


uM 


I 


308 


OPINIONS  OK  EMINENT  LAWYERS. 


suit  was  al)iite(l,  yi't  the  oxainination  bel'ore  potioe  held 
to  he  ^()0(1.  'rhoinpsous  case,  o  P,  Will.  195,  in  which 
the  case  in  Cro.  is  lel'eri'ed   to. 

Whatever  eirectu;ill\  dctcniiiiied  a  coinmission  on  the 
|)rinri|)les  ofcoiniiion  hiw.  whether  a  royal  dennse,  a 
new  (•oiiiiiiissMHi,  or  death  nf  til.'  party,  sh')uld,  on  the 
principle  dl'thi^  olijectinu  to  the  act  of  17*H,  invalidate 
all  aci>  done  iiudei'  it  :  I)ut  the  ca>es  cited  prove  that  all 
act-;  done  !>c!i)r>-'  notice  avc  valid.  When  a  new  Gover- 
nor is  iij)pointed  in  Kni;land.  it  takes  some  time  to  con- 
^('y  hither  noti<e  olthe  appointment  ;  a. id  the  acts  of 
the  old  (loV(  I'uor,  liefori'  notice,  have  always  heon  deem- 
ed to   lie   \ali(l.      \'er\    incoiix  I'liieiit  if  not  so. 

Should  it  he  a-ked,  why,  then,  the  statutes  of  Kiiiji 
\\illiani  and  (^>iieen  Anne  !  .Xn^wi"-,  it  takes  time,  after 
a  royal  demise,  to  -etth'  the  proper  an .in;;ements  of 
;4()Viiiiii!enl.  Tlu' coinmoii  law  only  siipjKirted  all  (»ffi- 
cial  act-  peirormed  liefoie  notice,  and.  therefore,  the  stat- 
iii<'^  ha  .  e  |jic~cr\  (.'d  and  <'oulinned  all  conimissioirs  for 
six  moii'ii-,  and  tlin^  i  oiiipiehrnd  as  well  acts  doni'  alter 
as  Iief.ire  nolirc  limine  tliat  pciiod.  Snch  was  the  de- 
\\i-{  "f  tiir  i-ohiinon  i.iw  auil  •iich  the  remedy  providecj 
ly    liir  -laliitt  - 

'i'lure  can  I"'  nodcnht.  ImiI  ihe  art  of  17"  I  passed  with 
(he  fidli'st  «'oiii  iiriciit  (•  and  i--ent  of  I hr  ( "rowii  and  tlu' 
two  lumses.  l-di  niii  ImIU  on  ihr  same  sulpjecl  had  j)ass- 
0(1  in  Maryland  ;  Init  iIm'\  \\ci<  .Icf'-atrd  hy  the  royal 
disstMjt.  'I'll*'  asseiiil>l\  acldresscd  tlie  K  ini;  :ind  e\|)e(t- 
ed  that  he  wniild  oriji  i  a  hill  In  he  framed  |or  the  pnr- 
pos«'  of  a  rehiiious  c-t.ilili-linienl  and  to  l>e  reinitteij  lutli- 
«'r  for  tlie  n>  .  nt  of  ihe  two  hoi'  ■  s  'Pin  hijj  u,).;  ,ic 
roitlin^rly  frnnietl,  rennlleii,  ami  a^-enled  |o  ,11  1711I 
uiuroover.  ullcr  the  deuiiwc  of  Kinu  \\  illiam.  liie  act  of 


or  THE  COLONIAL  CONSTITLTIONS. 


:]t)0 


17<M  \v;is  ti'.uisinitted  to  England,  jis  Wii.s  tlio  practice 
wlien  ;!(•(■<  parsed  here.  An  application  was  niade 
a,i;ain.-(  it  hv  some  d.issentors,  which  not  only  liulcd  of 
clK'ct,  Imt  was  the  occasion  of  the  particular  cniirniu- 
tion  ol  tiic  pious  (^leen  Anne,  whi(di  was  (,nleicd  to  he 
l)uhli,-.licd  ill  all  the  churclies.  The  lijth  of  Car.  II. 
l>assed  in  Ujeconvention  parliament,  which  was  not  dis- 
solved uilfhe  "^'.tth  of  i)ocend)er,  Ititin.  \'id.  I'ail.  liist. 
vol.  \.\iii.  and  what  i^  said  in  Vent.  lo.  applies  much 
stronji'er  to  this  ca.so. 

There  was  a  precedent  royal  assent  to  tic  act  ol'  I70I  ; 
liarliatiicut  and  assemhly   not  t(^    he   confoundiMl  :   local 
•  •ircuni-tauces.    as   well     as    other     rea^.n-,   distiimuisli 
''"'"'•      ''    i-^   ti'iit',   there  cainiot  lie  a  royal  assent  hcl'ore 
Hi'-  ni.riini;  of  pailiament  ;   hut  it  is    ini,.,   tiiciv  cannot 
he  a  nual  di.-^M'iit  alter  asession  of  iiarlianunt.      To  acts 
ofnssemhlx    Ih.'iv  uiav  he  di<sc„t  after  the    x-siou,  ami 
Avliy  not  an  a-<cnt  In'tore  ?      Ii    is  not,  except  in  thcca  e 
ofan;i.t  of  trrace,  n-iial  for  statutes  to  oriirinatc  \\  itli  the 
kin-;  iHii.wilhoutdoht,  ifahill  wit  h  t  he  ton  ,il  as>cnt  shod 
fe  sent    to  liic  Lords  and   ('onnuous  and  n- ci vr  ihcir  as- 
hoiital.so,    it  \\,ml\  he   a,  perlcct  law.  if,  ,,1,  n,  the  toun 
"f;i    'harter,  as  wa>  theciise  with  .\Ia-ua  ('harta.      That 
A\hich  coiistitntes  law  is  the  concnirinu  a-M-nt  of  all  the 
hraiiflieH  ofthe  leuislatin-e,   where>oe\(  i-  it    uiav  ha|qien 
to  orij^iMate,  whatever  may  happen    t..  lu'  the  t'oiniof  it. 
Vi<l.  Hale,    (hiir.    and    .\nti.|     I'arl.    and    Mh    Co.     i;,.,,. 
PriiM-tvH  ense.     The  Kin- cannM    '.e  pei-,oii:iH\    pre-.'ut 
ill  a^<f*^M^hl_\       the  maimer  mu-t  i.i-  l'o\  ei  ned  li\     the  na- 
turt)  oftho  husiiKNs  :  lie  eun,    therefore,    dis.si.|il   out  of 
nssiMiihly  ;  and  whv  not  assent  '      In   most   of  th^'  iict.s 
wliieli  have  latelv   passed  in  \  iii;niia.  the  acts  do  not  ,.p. 
t'rut«»  till  thuiwal  a*«0!it  i-«  "iveM     W  i..,    !!:;.;:    ]{'■-..  .-.■.! 


I 


!  i  r !. 


i     t 


:  m 


>\'m 


310 


OPINIONS  OF  EMINENT  LAWYERS. 


I 


f 


I 


t  f 


or  dissent,  subsoqncnt  to  a  sossion,  shall  he  so  eft'ectual, 
may  not  any  assent,  helore  a  session,  l)e  as  etVeetual  i  if 
there  he  a  restrietion  in  a  governor's  eoinmi-^ion  with 
respeet  to  partieiilar  act-;.  ;ni«l  tlic  re-tiiction  l)e  not  ob- 
served, liis  assent  is  ;i  nnllity  :  tiiis  is  in  the  nature  ofa 
precedent  i-oyiil  dissent.  Why,  then,  sliouM  not  a  pri'e- 
cdent  royal  assent  he  cllrctual  .'  Sii'  iMiHi]!  Yorke  and 
Mr.  Lntwyehe  wei'e  ckMrly  ot' tiie  ahove 'ipiuum  on  the 
I  >int  ot"  restiietioii. 

The  discretion  in  passing'  acts  df  parliiinient,  nrnot,  is 
a  royal  incnnninmicahlc  prerousitive  ;  hut  iiot  .so  as  to 
acts  of  assenihly.  Sucli  (li~ciiti(iii  niiy  he  coiiniiunica- 
ted  to  a  (iDvernor.  The  statute  iil'IIeni  ,  VIII.  relates 
onlv  to  the  nieii'  cxeciilidn  .iftlie  i'(i\:il  will.  The  idea 
ol'a  proviiK'ial  leul -iai  liie  to  Ik'  kept  up. 

It  i.s  !„  very  sliuiit  olijectieu  that  tiie  i\in,t;'s  name  was 
used  aft(>r  hi<  (U  niise  ;  his  iiauu'  wa,-  luiiieeessary,  and 
tidh  j>rr  iinitil'  ikui  rili'l i: r.  Tiu'  roxal  name  is  not 
used  ill  the  a<'t- III' New  ^'ol■k  oi-  \iri^inia,  \\  ii.it  is  ><aid 
ol"  the  aliatemeni  ofthi'  wi'it  of  .'Uiiimons,  I  do  not  un- 
derstaml  I-'ii miitn r  offif /n.  when  returneif  and  tlie 
cpialificat  ioi\  pel  lormed  What  is  >:\'\i\  of  proro^at  jon 
and  dissolution  is  a  mere  mi  take  :  tiiey  \\\.i\  he,  and 
usuidK'  are,  in  I  he  ( io\  ernor  .-•  name, 

Next    con>idei  the  ^tatul^■-. 

All  eommis.'^ions  continued  in  lull  force  and  \irtue  for 
six  months  ■  contunianee  and  :-u-pen-iou  aie  a>  oppo- 
site a-;  mot  ion  and  re-t .  I  f  I  hei  e  \\  ,i  ■  a  ennl  ninauie  tor 
nix  months,  there  enuld  he  no  -u-peiision  within  that 
time. 

Full  force  and  xiilu'.'.  J'Unvm  cMf.  rui nihil  ii<ftii  j)ot- 
f\t,  (III  nihil  lit '  ^1  ""  rii;t,!iint  ninihnii  suif  nrpttriff/fiv : 
tint   if  (lie  (lOVeriior    i-onid   not     ini>i>f     ftii>     n>jMi>iiih'^'     iind 


i 


OP    THE  COLONIAL  CONSTITUTIONS.  311 

pass  .lots  undor  his  coiiniiissioi^  tlu-re  was  something 
waiitinK,  ii'Kl  the  0()iniiiissi..ii  was  not  continued  in  full 
loive;  a  conc-hision  dim-tlv  iifiaiust  the  statutes.  If  the 
(n)venior  had  authority  to  meet  the  as.sembly,  it  wa.s 
(•\erc.sahle,  raiKi  ,„ini  ,-st  i>,>fntti(,,  q,t<,  noii  in  actum 
niiit.  LM'n.  .■)!.  The  assertiim  ol'  a  power  unexerei.sa- 
I'le,  is  ii  eoiitridiciion  ;  hut  it  is  sai.l  the  i)owor  was  ex- 
•■n-isahh'  only  in  the  name  of  ll,r  Qn.Tii.  The  ah.snrdi- 
iy  is  the  same,  fe.auM.  the  .■apac-ily  .  exercise  the 
pnw.'r  is  i,ia(h>  to  depnid  upo,,  an  ini|)ossihility,  the 
kiiowh.lnv  ,,|-  .,„  ,.,,,,„  iniattainaMe  by  any  hmnan 
iiH'iois.  The  law  ..xi),.,.ts  u..  mirach's;  it  is  satisfied 
with  hnuian  prudcnr.'.  ( '„.^>(.s /,„■!, n/i,.^  „o„  < .sf  .^penm- 
.///.v(,,/y„r/,//„//..v).  ,f  I.,, no  t.iatiir  <lirnuiro,  4th  Co.  27. 
c.  (Hi.  Litt.  l;.'|..  IIS, 

Th.'  -.,v. Tncr,  it  i>  .<anl.  has.,,)  ..x.du.sive  authority, 
.*v:<'.  ivxchi-iv  of  whom,  ,.r  what  \  I  ,h,  ,„,t  under- 
stanil  what  i^  mean;   hy  tiic  term. 

lUari^stnnc  ,|,i,,i,.s  liuiu  Hah  and  Krartun.  /'/•///./- 
piuni,r,t/.Hl.,tti,u...  not  appii<al.l..  to  „. I  American  as- 
sciiiliiy,  noi  ,.\,.n  to  p  iiliamcut  at    this  lime. 

■  iiilius  ('rispinux.h.Miy,.^,  ,nstn,.,un„la  s„  >,f  t,  mpnra, 
unit, tin    ii,n,i    hoiiiiuiim<n„,i;ti,>,n  .  nnitatu  ■^■>nif  ,t  .s,(,h- 
tloins.  innii  i>J>,ri„r,   reijiil,i  ,>n.s,;.^  tni,p,>,-il,u.s  iur„„nif>- 

(I':  ,     ini.sl  ll\    \ll  /{f  (llil  III  . 

<^a■,.^  \\nu-.  oi,  tl,..  Illh  of  Man!..  ITdl,  met  the 
pMrliam.mt  that  uas  „lliii-  at  Kin-  Wiiliaui's  ,h-mi.se, 
'""''■'■  >li«'  -latnt...  Tl  Lordv-.Instieos  m.'t  theparlia- 
inrnt  after  tl,,-  dr.M  Im,|  (^)n,vi  \mxv,  ,m.i.-r  thr  suU  ut", 
(Jeor^a-  II.  „„,t  ,1,,.  p.-nii,,m.>ni  liiat  liad  h.v.i  v„,H,u,,ne<l 
hy  ids  Cith.'r  Should  (hrre  Im- a  .lis^olution  of  i^arlia- 
nient  l.y  rlMuvion  of  time  it  w,u:l-;  P..  r.nrwed  and 
meet  under  tJie  stiituic. 


itll 


Hi 


AJ. 


312 


OI'I.NIONS  OF  EMINENT  LAWYERS. 


i 


Statutes,  acc'oininodated  to  the  times,   have  eontroled 


the  rule  in  Euiilaud  :  in  America,  it  i.s  not  witii  any  i 


le- 


gree  oi' jiroprii'ty  apjjlicable,  where  the  K'mvj:  \>  ueoessu- 
rilv  ah>ent  iVoni   the  asseml)lies  ;  what  is    done   in    tlie 


ro\al  name  is,   i 


ior  tlie  most   part,    done    1 


a    (Icputv 


where  in  the  ureal  ixiint   of  passin.i:-  huvs,  diseritionary 
powers  are    iVei|Ui'ntly    entrusted;   where,    as   has  ])v^•n 


sliewn.  theii 


can  lie  no   ( 


letect, 


on  tiie  I 


inneiiiU's  dt'  tlie 


ennnuiin  law,  in  act- ul' "iovernment  pert'oriucd  !)v'c)ie  no- 
tice (ifa  royal  demise;  where  the  powers  of  goNCiaunent, 
for  six  months  afti'r  a  royal  demise,  are hy  statutes  c(ni- 
tinued  in  fuH  loi'ce.  terms  which  ex(dude  ail  idia  ofsus- 

1   defect;   where  those   ]v>\vers  ai-e 
therefori'  idwa-  -.  dui-in,ij;  that  periotl,  exerci>a!)ie  ;   where 


])en>ion.  ees~aliou.  am 


e(in>i'( 


i!enti\.    the   validitv    of  the    exerei.-t'    (  ..uuo 


t  dt 


pend  upon  an  Uiipo-^i 


hie  observance.      (>iia)i<I>>    I'-.r   ad- 


'/' 


,/  ,//, 


lillt    Cdlll' 


,/it. 


colli' 


'lifi    riilijiw   (.1    ^A 


llh^d  i'tl'l  r<      Idlll    j: 

An  a. idiu'j;  a 


//,  s/.      Co.  Litt.   .")('). 


■t.  it  1- 


am 


l);i>se(l   in 


Vir- 


iliio  /'c-y 


una  :    lliere- 


foi'c  a  -liuilar   iiroxi-iou  was  m>cessary  in 


.\| 


ir\  i.uui 


A 


senoti-  aiHWi'i' 


cauiH''  III 


his   rem, Ilk  would  In'    ridicidoii-  ;   hiii 
l|iol).sorviim-  h  i\\  little   care  i-^  taken  to  :i\oid 

■<s  stiMxl  in  \\v\A 


incon.sisteucy.      It  i^adiuiltcu  that  proee 

(>f;iii    lid.   lait  tlic  \'irgiuia  law    iiieludrs   jiro<  I'.s 


s  us  wei 


lUJ  acts  oliisseui 


on  isii.>< 


toiiisi 


»in«jr. 


])iit 


liaiiniii    I 


l)ly.     That  till  act  ol     I7>l  i>  relied  up- 
Tlic    latilc^  extend  t  I  a  royal  demi-e, 
liMlh   '>va-  no   moil    ihoii-lit  of  hy  piir- 
h.ni  tlu'  death  of  au\    ithei   person   wlio   might 


I  j.roprietor 


appeii    lo  ,i|ipoiiit  iiu  attorue\ 


liroliells     aioeo 


•roeess  as  well  a.s  at 


II 


The  art  of  1751  very 

•Is  ;  hut    thou";h  the 


■A  of  1701  is  iiuthinu;  to  the   purpose    for    whi<  h   it   haH 


OF  THE  COLONIAL  COXSTITUTIONS.  313 

been  cited,  yet,  in  another  view,  it  is  not  immaterial. 
Consider  the  preainl)le  of  this  ac  and  the  rule  of  con- 
stniotion  :  the  intention  or  will  of  the  legislature  dedu- 
cilile  from  the  wliole  act,  of  which  the  preamble  is  part, 
constitute  the  law.  There  can  be  no  doubt  but  it  was 
the  will  or  intention  of  the  assembly  in  1751,  that  laws 
which  should  jki-^-^  after  a  })roprietors  death  should  be 
aided,  as  well  as  pr(;cess.  Jn  order  that  this  purpose 
miiiht  be  attained,  tlu"  act  of  iTol  enacted  only  that 
the  (Jovernor's  comn)i>^ion  sliould  remain  in  force,  so 
that  as  far  as  tiie  sense  of  the  assembly  in  1751  is  of 
weight,  it  follows,  that  preser\  ing  the  Govei'noi''s  com- 
mis-^ion  is  suflicienl  to  prt'serve  the  powi'r  to  make  laws; 
wherefon"  it  may  be  inferred  from  the  manner  of  the 
pi'ovisions  made  by  tlie  act  of  1751.  lo  have  l>een  the 
ojiiiuon  of  the  as-ombly  that  the  act  of  i7(t|  was  in 
I'orcf. 

With  what  iicen-^e  are  piinciples  rejected  and  ado])t- 
ed,  lino  fittof 

Above  one  hundred  acts  have  recognizeil  tlic  force  of 
the  act  t)f  1701  ;  but  these  (dear  indications  of  tiie  sense 
iifdiHeri  nt  legislations  are  slighted,  the  sense  of  the 
ligi-latni'c  is  su]>posed  in  one  instance  oidw  ;nRl  this 
one  instanee  is  rojiresentrd  a-<  a   conelii>ive   proof. 

'I'he  arg>un(  1,1.  from  the  nundici-  of  MipplcmentarN' 
de|icndent  .'let-.  and  therefore  of  recitab.  need  not  be 
insi.sted  upou  here.  These  aet>  are  so  m;iii\  h^i.vlat  ive 
decl.nal  Mill.-,  to  wliitji  all  oUi:ht  tn  irise  ciedii  Pop 
l!c|>.  7'.'  The  act^  tiial  |ia-<od  In  .iune  I7i'-  Oct.  1703, 
in  \pril  I7'i|  >ho\\  tb<'  (ii<e  oftho.Hc  a.s,scud>lies  ;  for 
II 


M-l 


♦-$ , 


t  ■ 


314 


OPINIONS  OF  EMINENT  LAWVEBS. 


no  new  writ  of  election  issued  till  after  the  April  ses- 
sion, 170-r. 

If  the  act  of  1701  )>;  void,  we  have  no  religious  es- 
tablishment, no  rectors  or  vestries.  What  is  to  become 
of  the  churches,  glebes,  doiiatious  to,  purchases  by,  or 
from  them,  leases,  &c.  judgment,  convictions,  determiua- 
tions  before  the  governor  and  council,  assessments,  par- 
ish registers,  &c.  / 

What  will  become  of  all  those  most  useful  acts  that 
passed  the  od  of  June.  ITlo,  and  the  acts  dependent  up- 
on them  ;  f  u-  the  assemldy  tlien  met  on  writs  of  elec- 
tion that  had  issued  in  the  King'',  name  ?  The  (Jover- 
nor  derived  his  authority  from  the  King's  commission  ; 
Lord  Benedict  died  on  Ciood  Friday  before ;  his  son. 
Lord  Charles,  was  a  protestant  ;  the  disability  which 
was  the  cause  of  the  royal  a>sum{dion  wa-^  removed  ; 
the  charter  of  the  [)rovince  had  a  full  operation;  liord 
Charle-;  wa<  restored;  he  iKcame  ,'iipreine  niagi.-trat(>  in 
loco  ri'/i'^-;  Iiusand  jirocess  were  to  lie  in  his  name; 
Govornor  Harts  conunission  from  tiif  (^idwn  was  (U'ter- 
mined :  a  new  cominis>ion  from  Lord  Charlrs  passi'd 
tho  oOtli  of  May,  I7l">.  On  the  prini'iple  of  the  olijcc- 
tion,  all  the  acts  tliat  |,is>i'(l  the  •>(!  of  .luni',  171").  anil 
the  de[iendent  act-  are  void.  How  arc  will<  (o  ln'  pro\ - 
ed  over  again  ;  administrations  to  be  granted  :  proceed- 
ings of  delegates  r/tiin  :  titles  allectcd  l>y  tlic  cin'olnicnt 
act  revi\  eii  ;  wlicn  ai'c  the  comts  to  meet.  i*<c.  \c. '  W  hat 
is  Ut  be  done  to  |ic\(  nt  playing  tiic  vci'y  ilcvil  '.  (huuH 
pericii(o>iuin  >■•>■/.  r<\-  Horos  <(•  iiiii-<it(itii-<  imliicirc ! 

Some  gi'iitlemen  will  iia\c  a  gicat  deal  to  do  as  legi.s- 
latorfi  iuid  lawyer>  rrdi.ijipily.  a-,  itgi-lat  >rs  (hey  can- 
not renu'dy  tlie  incon\'enicnie  ;  for  a  re-(Miac(ioii  ot  the 
laws  wdl   not  be   .suHicient,  and  a    conlirinalion    would 


OF  THE  COLONIAL    CONSTITUTIONS. 


31;5 


have  a  rotrospoctive  operation,  which  they  are  princi- 
pled a,<;-aiii,<t.  A  word  or  two  on  the  matter  of  relation 
OT  retrospect. 

I  fan  act  pass  the  last  day   of  a   long   session,   and 

nothin-r  expressed  in  it  t.)  control  tlie    relation,  it  is.  in 

notion  of  law,  an  act  of  the  Hrst  day  of  the  session  ;  but 

yet.  I  think,  the    rule  h.v  rtorni.im  Impouit  fntiLus,  is  a 

vei-yjust  one,  when   the    application  corresponds    with 

the  reason  of  it.     It  would  be  cruel  and  unjust  to  punish 

ail  action,  indift'erent  v^hi-n  done,  as  u  crime,  by    a    re- 

trospectivc    law.      J/-,„-,v  Ir.v  o,>orirt  priu^,pwm   fniat; 

but  tlie  coufirination  of  the  act  of  1701  is    dear  of  thi.s 

iin])utalion.  Ihr  no   jhtsou  who  did  not  connnit  a  breach 

of  it  would  be   liableto   the  little  penalties,    and    none 

who  did  coniuiit  a  hrcnch  could  properlv  alleiro    that  he 

thouo-httbe  a.^tion  lawful,   because  no'one  doubted  the 

existence  an.l  VMlidity  of  the  l;,w.      /.',„,  ,,,.  ,„^„,  „j^,,^^ 

r>^t  rca.     Besides,    all   this  tenderues.    is   alVected,  since 

there  cannot  l)e  a  c;.se  of  punislnnent  to  be  inllicted. 

All  aidiuu-  acts  are  retrospecllve. 

Suppose  a  lau  had  pa.sed  in  I  Td  I.  iellieting  the  pains 
-t  denth  on  tlie  crime  of  burgla.y,  and  a  trial,  conviction 
Hiid  .•x.-.Mitiou.  before  notice  of  tbe  King's  demise  On 
"'*■  !'n".iple  of  tb..  objeefiou  (vide  what  is  .^uid  by  Per- 
.''ey  in  the  year-book  at  large,  above  cited),  the  "execu- 
tiou.'r  woidd  have  been  guilty  of  nmnler,  the  Judges 
r-vernor.  and  Couucil,  accessones.  aud  vet  each  would 
''^'^'■I"''l-nned  hi- duty.  This  would  be  more  cruel 
'""Inn.iu^t  tbaneveua  clenr  retro.speetive  act  inllicting 
aJittIc|-naltvonaua..tionsnpp,w,.d>.y  (he  agent,  ^it 
the  very  tiuir  of  doing  it,  to  br  uidawfid. 

Mlli'iirv   as    well  a.  .  Ivil  cuuuuissious  were  .outinuud 


"■>   .-i.tti4ie  111  mil  loree  a;i(l  virtu< 


Sii 


l>l)o,so  a  court 


\  t 


ni 


316 


Ol'IiMONS   OK   EMINEaNT  LAWVEKS. 


•;ii 


martial,  trial,  conder.uiatioii,  and  death,  iiillicted  ])Lforo 
notice  of  the  royal  demise.  This  may  have  pr()ha])ly 
happened ;  what  a  deal  of  employment  for  Jack 
Ketch ! 

To  eonclude.  Suppose,  according  lo  the  rule  in 
Plowden,  the  case  stated,  and  the  ([uestion  put  to  the 
parliament  that  passed  the  above  statutes— You  have  en- 
acted that  all  connnissions  should  continue  in  full  force, 
&c.  and  therein  included  the  commissions  of  American 
CJovernors  :  it  Avas  the  duty  of  these  Governors  to  act 
in  His  Majesty's  name  during  his  .  etime.  Did  you 
mean  that  what  they  should  do  in  his  name  ur  a  time 
when  they  could  not  know  ly  any  human  means  that 
he  was  dead,  should  he  void,  because  they  were  not,  hy 
fiome  miraculous  iuterjiosition,  informed  of  the  King's 
demise  \ 

No.  It  wa-<  atfu'st  said  that  all  the  siqipli'mentavy  and 
dependent  acts  were  void,  as  well  as  the  .;ct  of  1  7"  1  ; 
but  it  seems  that  the  contrary  is  to  be  contended  I'oiV  in 
order  to  les,-.en  the  weight  of  the  argument,  (i}>  iiu'mircn- 
i(:nti((. 

The  r<>rmcr  position  was  more  consistent.  Tf  the  act 
of  1  I'M  was  originally  void,  and  none  of  Mie  supplemen- 
tary or  dependent  acts  have  confinncd  it,  these  acts  arc 
void;  foi'.  as  said  a!)o\  e.  it  i-^  the  will  or  intention  of 
the  legislature,  which  .'ousli lutes  law.  Without  execution, 
the  law  is  a  dead  li'tter;  the  execution  must  be  agrci'M- 
lih'  to  the  legislative  will,  'i'echnical  woi'ilsare  imt.  n^  in 
tlu'  limitat'on  of  estates,  nece-,-aryto  ex|UH'ss  their  will. 
When  one  ai't  is  supplemcntaiy  to.  or  de[)endent  ui)on. 
a  prioiaci,  iiic  construction  is  (ui  l)o(h,  the  \vili  bciim 
deducible  frc'i  both:  it'  tlu-  former  law  be  rejeciiil.  the 
execution  ol  aie  latter  law  will  not  be,  as  it  ought  to  be, 


OF    THE    COLONIAL    CONSTlTlTlO'v  S. 


31: 


agreeable  to  the  legislative  will.  Wherelbre  either  the 
Mi]j|)leiaentary  and  depe-  dent  act:^  had  confiniied  the 
(•ii,!j;iii:il  act  of  1701,  or  they  are  void.  What  i.s  implied 
ill  a  law,  is  as  effectual  as  what  is  expre>scd.  The  rule, 
(■,rj>i'e-s.sio  connn,  qau-  tacite  m-stiuf^  nil  opennitu)',  is  as 
api)lical)k'  to  this  as  to  any  subject.  It  is  agrec-d  that  the 
act  of  170 1  might  have  been  expressly  couHrmed:  a  con- 
lirmation  necessarily  implied,  is  as  strong  as  an  express 
one  ;  and  what  can  be  more  necessarily  implied  in  a 
law,  than  that  which,  if  not  supplied  in  construction, 
must  entirely  destroy  it  ?  I  refer,  in  general,  to  cases  of 
construction,  which  are  too  immerous  to  be  applied  here. 
The  principle,  and  not  the  letter  of  a  determination,  is 
the  authority  of  it  ;  and  on  this  ground  I  apprehend 
there  may  be,  whether  any  case  in  point  can  be  founder 
not.  an  imi)lied  confirmation, 

I  have  avoided  taking  notice  farther  than  I  was  led 
to  do  by  1st  A'ent.  15.  of  what  has  been  done  in  times  of 
great  danger  or  turbulence,  because  1  think  such  instan- 
ces rathe;' show  the  distemper  than  the  constitution  of  the 
state:  hut  as  somethingof  thi-i  kind  ha-;  been  indistinctly 
spoken  of,  I  will  add  in  what  manner  [)arliaments  have 
been  (Ninvencd  upon  accessions  to  the  tiu'one. 

The  fust  writ  of  sinnmoiiS  of  the  couuuons,  now  ex- 
tant, was  in  the  49th  year  of  llciu'v  tlic  Third. 

Kdward  the  First  was  in  the  lh)ly  Laud,  at  the  time 
nj'thcdcinisc  of  his  father,  Henry  the  Third.  On  retm-n- 
iug  to  England,  he  was  crowned  the  Uthol'  August, 
1-71.  near  a  year  and  a  half  after  his  fatbei's  ileath  — 
Soon  after  his  coronation,  lie  called  a  |)arlianient. 

Ivhvard  the  Second  issued  new  writ-  I'ebeini::  depos- 
ed by  parliament  and  compelled  to  roigii.  was  succeed- 
eil  by  his  son,  Edward  the   Third,    who  met  the   ])arlia- 


318 


Ol'iMuNS    ui    E.MI.NK.N  I'   I,AVT^  i;HS. 


4 


li 


ment  tliat  had  hoon  omIUmI  in  liis  father's  name  and  had 
deposed  him.  This  ])ariiament  eontinued  lor  al)()iit  one 
month  after  Edward  thi'  Thii'd's  coronation. 

IJieiiard  the  Sccniul— lU'w  writ  of  smumons.  Henry 
the  Fo'irth  met  th-  pirliament  that  had  been  called  by 
Eidiard  theSc'':  n  1.  [feiii-y  the  Fourth  had  siumnoned 
a  parliament  to  meet  tht'  li  Uii  of  "Vhirch,  Iflo.  Whether 
Henry  the  Fifth  met  this  parliament  or  not.  is  doubtful. 

Henry  the  8i.\th  i-^su    1  n-jw  writs. 

Kdward  theFourih  i^-ued  new   writs. 

Edward  the  Fifth:  nothini:'  done  in  hi^  time.  He  wa.s 
Iwrn  in  a  sanctiKU\-  and  died   in  a  prison. 

Kicliard  tlicTiii^'d  i-siicil  new  writs. 

Henry  the  Sewnth.  the  .■-ame. 

Hem'ythe  Eighth,  ih*'  >ann'. 

Edward  liie  Sixth,  liie  .-ame. 

Mary,  the  ^-anie.  On  he'  marria^ue,  a  new  writ  issued 
in  the  naiiu'  nf  Philip  and  .Marv. 

^\'hen  -Mary  siied.   the    |  arliament  was  sitting,  17th 
Nov.    l')')^.  and  pKndaimcd  Elizabeth. 

Elizabeth  is.-ned  ntw  w.its.    1st  Dec.  1558. 

James  tlie  First  issued  new  writs. 

Charle-  tlie  Fii'>l.  iiie  <iinie. 

The  conveniioM  rirliament  Ije^au  2")th  of  April  ICGO. 
A<rreed    in   a  ttee    of   'M)th  houses    to    proclaim 

Charles  tli-  Second       ii  of  >i,  y,  lOOO.     He  wa.s  accord- 
intlly  ])i-(Kdaiined.  ."lOlli  of  .M.iw 

Charles  the  Seci.ml     ct   the  t'onvention   parliament. 

,Tame<  the  Second  i->!ieil  new  writs. 

What  happened  a!  the  IJcvr.hilion  need  n(;t  l)e  men- 
tioned. 

()iieen  .Vniie  met  the  parliament  (hat  ^^  's  silting  at 
King  William's  deml.-e,  undi'r  tin;  statute. 


V 


OF  THE   COLOMAL   CONsTlTLTIUAS. 


ai9 


George  the  First.  The  Lords-Justiees  met    the  pnrlia- 

ment  that  had  heeu  .suiiimoned  hv  ( >iioeii   Amie.   under 
the  statute. 

^George  the  Fir.st  died  at  (Knahurg.  nth  oi'  June, 
1727.  An  account  of  hi.-^.k'i.iisc  was  .vceivcd  ilic  14thof 
Juno.  0„  the  fifteenth,  tiic  pMrlianicnr  nict.  was  prorog- 
ued by  conirui.s.ion  to  the  I'Tth  Jnn.  .  1727,  wlieu  the 
se8sion  was  opc.'.cd  hy  (George  the  Second.  'l7tli  July 
prorogiK'd  to  the2!)th  ofA.gust.  Ou  H„,  7,],  „•  ^ugu^i 
I/2(,  dis.solved  and  new  writ^  is^ned, 

I  have  not,  ahove,  insi^t.Ml  upon  the  act  of  1704, 
though  that  ahine  may  he  snhicieiu  to  estal)lish  tlie  act 
on701,  becau.se  iinrdly  nny  tiling  can  l)e  suggested 
which  Avili-not  occur  to  every  one  wh,>..e  imsinessTt  is  to 
consider  subj.'cts  oftjiis  m.tmv.  •u.<l  shall  tlu-,etl>re  only 
olxserve,  that  the  practice  of  av<end»]ies  enli.rces  tlie  ac't 
of  1704;  for  at  diflerent  periods  before  17(14.  the  a-om- 
blies  renewed  the  acts  that  luul  pas>ed.  and  having  doter- 
rnme<l  which  of  then>  were  convenient  end  in<-ou" -nient, 
'>v  an  act  .similar  f<,  that  of  17(14  .leclared  the  former 
should  remain  in  force  and  llia,  tlie  belter  should  be  re- 
pealed. From  tJiis  circumsiance.  tlie  intcniion  .„•  v.ill  of 
the  legislature  may  be  strongly  infe,  red.  [have  al.o  a- 
voided  a  particular  app!i..ntion  of  i|,e  suppbMncntnrv  and 
dependent  act.'.  The  debul  would  be  vvvv  prolix 
>nal  throw  no  new  light  on  ihe  .picnon  :  but  time  bcinj 
one  de 


'lieiKient  act  of  a  pecu 


snort  reMi;ii-i\  iqxiu   it  :   f 
winch   does  not  expn 


"■•'I'  nature.    1  vjiall   mal 


ce  a 


iii<'an  iIk'  act  .  f   I7I 


(  1  •>.   can. 


I\    iiienti 


'7(11.  but  enacts  in  geiier.ai  t 
iiuhicted,  or  a.Imitted.   .-ImII  | 


'11  or  icrei-   to  the  act  of 


criiH  tbat  a  1 


mnistor.  lawfu 


'the  40  lbs.    ,-f  tol 


ia\e  a    prop-.i  tioiialije    part 


bom  the  day  of  his  indu.'tioii    to    th 


•■'"''■"     !"■'■    ]>='lb    <-oiii|Mitiiig    ihe    til 


lie 


&c.  Vid.  the  act.  Tl 


a\iiiL;-   tiie    b 


le  will  of  tl 


vy, 


le  le 


dsUfi 


I  r\ 


320 


CPINKINS    OF    EMINENT    LAWYERS. 


the  !:i\v.  M\  this  iict,  ;'"  a  mlnistc  shouhl  servo  the 
whoh'  WAV  v\cr\A  ()';e  day,  he  wouhl  l)eentithM!  to  the 
40  Ihs.  (if  toliaceo  ]iei'  poll,  after  deduetiiii;-  for  lii,>(  day. 
Aceoi-diiiLi'  tr  the  ol  jeetioii,  if  the  minister  shoidd  eoiii- 
pU'telv  s(M\('  lir  the  whole  \ear,  l.e  Would  he  cmitled  t) 
nothing;.  That  theresht.'ild  he  ])arts  without  iiwho'e. ali- 
quot parts  of  uothiiiL,^  is  a  new  diseovery.  If  ohj'cted,  t'.iat 
the  act  of  I  TO  I  iieiuir  void,  there  ean  he  no  incuuihent. 
then  there  \\\\\>{  ahva\s  Ik  a  vaeaney.  and  the  lOlhs.  o| 
tohaeeo  jirr  pull  lie  eternally  applieil,  under  the  aet  of 
170-").  eap.  "J  I.  Ii'.it  to  what  end  !  If  ohji-eteii.  tlii-  ;>et  is 
void,  ih-n  till'  arLi'unicnt  ii''  im-onreiiii  ii/id  will  have  it- 
fell  furce. 

\>.    I). 


Tl 


nni 


'/ill  < *i)i:!fii,  'III  till  .-'I'll'  sithjrrl  hi/  Mr.  Willi, nil  I'liiii. 
flu  rniiiii  lit  Iniri/i  r  nf  A/ii>i/litH(l  *. 

<'n>^..  Tin  [MoNiiire  of  Maryland  was  in  the  liand^ 
of     till'    ('roun    in    the    I'ei^n   of    Kin-j;    Willian       and 


•  Yft  «•!•  the  0|>iiiIon  Dl'lIniiH^  iiilniOrtiil  Iiiwyi  I  \\>t-  Allornr)' niul  .Sniicllnr 
Ymkc  nnil  T.tllxil,  iiinlcr  lln"  hr»il  of  the  GoM-rnor  1.  .N(>  '< :  wli.ri'iii  thpy  btow 
Iheir  jiHiKinrnl  l"  \<r,  llml  'lows  |>in»e<l  by  ihe  Uorrrni-r  ii|'|i<Mriti  I  liy  th«  Lurtis 
Prtiprirtor*.  in  llnir  n.imis,  hIiit  \\\v  sale  (i.tCiiroliiia  )  mm  luldir  iioIut  llcrmf  si- 
rivcil  in  ihr  pr<ivitii'.-,.ii(>  ofllic  »nin«  vnlii'ity  in  mic*)  i.iws  wntil  I  liuvi-  lif^n,  if  llh  y 
kad  bfen  \<h,\m-  I  in  likr  ma  pr  brfnrr  siitli  Mile  '  nnw,  n«  i very  drinib..  imports 
lrnn«fi-r,  llif  di'  iiiw  >rtt  pnivim-e  liy  iinir  is  ilir  iiaini'  in  ci>Mliinpli»lii>n  ufliiw  ai  llie 
drntinr  .rf«  kil>i;ii»iii  liy  llir  (lii'en»r  of  tin-  K'"'»  ;  niic!  nnlHi'  nl"  lir  ilrmni'  liy  iIp- 
fCiiM  in  n*  neci-Miiry  In  ffftei  the  li-gnl  ulijrrt,  nt  imlic  r  of  ilie  irnnxliT  l>y  «»Ip.  TIip 
■ophitrtrytir  Mr.  raia's  opinum  conii  i.''  in  iln",  iImI  lif  rrninnii  the  >|iiiiiii>n  ««  if 
it  were  I'ciicBrnins  the  mipmnr  Icjfinlatiire  iin.l  ii"t  a  lornl  IrKishittirr,  hovinp  InfiU 
HMgVK-,  nnd  ihi- |i»-.il  ii»ngr»  «>f  the  (iixwnitily  nf  Mnrylniid  n;i|ir«r  nliovc  In  h»^^ 
been  dillVn'til  linni  llir  Imr  i>f  |millBii>riii  ;  drjieMiliits  iirrhrtp',  nitiidi  liifte  upon 
Ihrrontinuance  of  di"  (iovcrnor,  Ihnn  M|«»n  thr  lift  of  ihr  Kin,  ;  nwl  **«  inny  ikh: 
liow  •irunjj'y  thin  iiirti.  1  hint  liikrn  h»!d  on  the  miiidn  of  l.iwyiTu,  In  theque»lii>n  "i 
New  Voik  iiiinn  tlw  .liswjlmiun  of  Uw  MMinblv  I'V  ihi    diinonliniininc  of  thr  lii 


I- 


OK  THit;  cuLo.MAi.  !  u^.^l'^^^ TLiNs. 


321 


Qiionn  Anin'.  Agciioral  jt.ssenil.lv,  in  tlir  tiuK' ol' WiHiuiu 
had  Ih'cii  l(\ii;;illy  olio-cii  liv  the  Kiiiii'  s  w '■[[  df  clctiou 
Jiiid  siiimiions:  Kiu^-  \Villi!uii  died  ( n  (lu;  St!i  M  ax-U 
1701-2:  witliout  any  I'lixli  u  i  it  dfclrrtion  and  snnunon.s 
the  as>iMid)h- aftiTward-  met.  and  uu  the  llitli  March 
IT'tl-l',  Miade  and  enacted  the  cunt.'  led  law.  coniniuid)- 
callfd  tlio  Invty  |ui-  nnli  law  . 

(Jwii-f, — Is   this  fdi-tv    pel- poll  acta  i.iw  cr  [•<>[  ! 

The  Kin,^  hfiii-  thr  ll.unlain  .)!'  al!  jiidi-.'atnrt',  thu 
writ ofsnniinons  111' ih(>  pai'liaincnt  i-Ma  in  his  nainii 
and  In-  his  iinthority  .  and  tin'  •■  ul!  luicnt  i 
and  is  held  hv  sncdi  w  ril   ul'  m 


nciicfs 


nniun 


.,! 


I ii  i''i-  ..ji!.<si(in> 


civil  and  inilitar\ ,  IIdw  I'v.nn  him:  and  all  protvss  in  the 
several  conrts  nt'  jnticc  jirocecijs  iV.ini  him  and  in  Irs 
name.  At  cMiuan.i  |a\\ ,  therelore,  upo;!  the  dmii-.' nr 
death  of  the  Kin-,  lli.^  wiif.of'.suiiuiioiis  ahated  ind  ih,; 
parliament  was  di-M.hrd:  all  .onnnissions,  »  ivil  and 
aiilitarv,  wer"  deteiininv  d  ;  and  all  pi'iicesi  in  th.-  cdnrt.'i 
ul'  jn.-tice  ah;!  d  or  di-<t'nt  imied.  'I'n  pii  xcnt  the  in- 
convenience, dcday  and  e\p"n  •  ofa  general  aliatenaait, 
or  discontinnance  n\'  p  •,»•(•-,  in  the  courts  o|'  ju'-lice,  an 
act  WIS  pa>,M'd  in  the  lime  of  Kdward  the  Sixth  .  Imt  not 
hrinj,^  larjfe  and  .opipn'hensivo  eiion^li,  the  act  of  I  Au- 
la ,  caj).  S,  ^^■a>  afti'rw.nd  enacted.  The  con;  imianco 
•  fail  pio<r  s  in  the  courtrt  of  jllsticf  h\  the  a^  I  o|  lv|- 
\\;ird  the  ^i.^lll,  alter    tie-    dellli.sc    of  tho    Kiir:.  dal  n.,t 


•  riior.     Tlic  Atlon  n.l  'nl'.iMr  (..  ii.Tnl,  >  i.j  kr  aii.l  1  ,il!».|,  we    hiuc    wi-ii,  ur- 

KU'il  llirir  qurstinn  I  :<<m  roiiiiii  ii  I,«u  |iriicijil.  «•  »"  ilhl  .Mi.  Iliiltuiy  uf  Mcry- 
l-iii.l  .  iiiul  he,  likP  tlHii  ,  iii.i:'  jled  to  ktrp  I'lr  iittciilipn  find,  llirouj;li<.in  (hr  M- 
Xumriit,  tu  iIm'  II  iture  (ifllie  ({uestioii,  lu  it  r^lnluil  to  ii  li.nl  Ipgitlaliire.  Uii  riwy 
tor  jmlgei,  Hitting  in  WV»liniin«.r  l.ull,  l..  »iiy-«eowill  i.iki- iio.iw  ..f  i|,r  Kiiij;, 
wim.cijn.i  over  in:  but  wlinl  iiollrr  r.ii  ■  im-e   >>f  ili-vn  (hou 

tanil  niilrii  t  'I'liry  iiiUkI  •irguc  cTrry  <|tii  -  ,     nv  priiic  iili »    ivhii-li 

nrvi  r  m|iiir<'  iin|><niiiliilill<'l  ofnny  mw. 


M 


■>f 


t  I 


Hi 


r 


',)22  OPINIONS  OF  EMINENT  r,AWVP,T?N'. 

invi^Dratc  or  iiiiplli'dly  revive  tlio  patents  of  the  justi- 
ei's,  or  coimnissions  of  the  jiul,i;eK.  This  was  a  iiiis<  luet 
whi'li  r;.!U'(l  tor  reth'ess  ;  ar-l  !,■  ice  the  statute  of  tlie 
7tli  and  Sth  of  William  III.  cap.  27,  wliicli  heiiiL;  local 
and  noi  reaching  the  plantations,  was  aft«M  wards  (■xlcn- 
dodl.'Vthe  al)ov»>  act  of  !  Ainie.  cap.  S.  Another  mis- 
chief deiii-,nde(l  re<lre^s  ; — the  dissolution  of  the  parlia- 
uuut  hv  the  al)atenient  of  the  writ  of  suunuons  upon 
tlie  deiiii-e  of  the  Kini;' :  whei-el<  re  the  act  of  7  and  S 
William  1 11.  caj'  1">.  was  enacted.  This  act  is  e\press- 
1\  conlincd  todr.Mt  Uriiaiu,  and  not  e\tendcd  to  the 
plantations. 

15\  virtue  of  the  provisions  in  tiie  si'V(>ral  statutes,  f 
adiiiil,  upon  the  demise  of  King  William  the  proceed iiigs 
in  our  court-  of  justice  were  not  ahtited  or  di-;continni'(|  : 
;ind  1  .d^o  adu'.it,  the  eomiuissions  in  this  pni\ince,  ci\il 
and  uiilitarv,  were  not  d'Lermineil  ;  i»u(  I  hold  tin;  as 
semlil\    \\a-    dissoI\'ed. 

1  la\  out  of  tht>  ease  the  .ict  of  7  and  S    WiUi.mi  111 
cap.   !•">,    n  liich  pro\  ides  again-l     the   disselution  of  tiie 
parliament    at   iiouie.      I  presume  no    v.'  idleman  ol  lr'j.al 
kn»M»ledtre  will  oppose  it  agaiii-t  .in      tiu'  act  heing  I'Mal 
and  not  extt-nding  to  the  plauta'io  . 

I'he  euiinnon  law  o|K'rat«'s  till  -u>pcnded  or  ahrogafed 
by  stntuto  :  up^n  the  demise  .u  tlie  Kini:  the  wrii  of 
.-uuinion-  ol  the  parliament,  at  eouunnn  law,  altated.  and 
th''  pariiamruf  was  di--i<)l\ed.  I  a-k,  upon  the  dmii-.- 
Ill  l\in^  \\  dliani  what  >tatu(e  prevenfc  I  (he  :ih;itemcnt 
nr  th-cdntinuanci-  ot  till'  w  rit  I  -ununon-i  l'\  wiiiihthc 
as'<enil»l\  of  this  pi-o\  nice  was  ihen  lichl  I  if  no  tatutc 
existed  (!■  common  law  attached,  and  l!  •  ,  .-semi)!;. 
was   llissolved. 

I    have   heen   told    a  ^lutlemaii    ol'\ery    re-pi'ctahlc 


OK  THE  COLONIAL  CONSTITUTIONS. 


323 


character  has  ^[\^n  a  dinTereiit  opinion,  and  relies  upon 
tho  act  of  7  and  8  of  William,  caj).  27,  (extended  to  the 
plMnta(i<.nO>y  the  act  of  1  Anne,  cap.  8.)  which  enacts 
that  ail  coiuinissions,  civil  and  inilitnrv,  shall  remain  in 
lull  force  for  six  uh.nths  after  the  demise  of  the  Kinn;. 

I  f^rant  the  cominissionH  of  tlie  Governor  upon  the 
death  of  Kinjr  William  did  not  cease  or  determine  :  1 
also -riant  that  the  Governor  is  invested  with  the  jx.w. 
CIS  of  siimnioniii^^  i>roro>ciiin,<:,  and  dissolvin;;  the  a.s- 
s.'iiil.lv:  hut  these  concessions  cannot  inlluence  the 
<';ise. 

When  we  speak  of  the  powers  „f  the  Covernnr  tosimi- 
luon,  proroLHie  and  dissolve,  we  ou,^ht  to  he  explicit  in 
niir  ideas.  Tiie  (Jovenior  haw  noexchisivL'  authoiitv  in 
'his  dei)artmentof  his  „lli,-o  :  thewn.  of  ,.;nnmons  fnran 
;ts^eiiiliiv  issues  in  thi  Kin.n's  name,  tested  only  l.\  the 
(ii'vernur  :  (he  prorM;,r:Mion  is  made  in  the  Kiii-^  ),;ime 
and  -'O  is  the  dissdin,  ji,., 

Th.'asseml.lx  thm.  \u-\w^  held  !.y  th(>  Kin-'s  writ  .,f 
suiiiinnn-.  whiif  avails  the  suhsistinj,' commission  nfthe 
Covcnior  upon  th.-  point  of  Mhat.'nient  or  disr,^„timi- 
ance  I  '{'he  wiit  ;iimv-  i.'.ate  witlnmt  alVcrtiiiir  tlic  <  ;iii- 
un-sion  :  tlnT-'isno  clashiu^'  or  repii<,'ii;nify  :  a  siiii!- 
inon^  iiii-lit  have  issued  fop  ;,  „r\v  assemhly  in  Mn-  nam,. 
"I'<>'i>rii  \nnr.  and  ever\  pouci  nii-ht  have  Imth  .-x- 
ri  trd  coiiscMptctitial  upon  siii'li  cciuinissjou. 

Tlic  ai-iimrul  caimof  !„•  rest,-,!  upon  the  Lrcn.Tal  op. 
'latiMi,  nf  ||„.  (i.ivrrnoi-  <  conunission  to  sniiiinon  pro- 
roiriie.    and  disM.U,.;    f.,,-    ihi-e    p,,\vers     u  ith     iv^p.  .  I   to 

''"'  !"iiiia.ii,.i,t  at  I ir.    npM,,    H,,.  drmi>e  of    iIp-    Kin^' 

di'voive  up  .11  III.  s,„.(."SHor  :  yet,  at    coiiiiuoii    law     th,. 

successor  could  nnl    j  ,. d    upon    a   writ    oi    ,. ni.ais 

invarded  in  the  (i|nr  of    (j,,    ,,,-..,u.,.,.^^,,...    ,\.,,  ,,,,,!:..,....,.. 


1        1 


324 


OPINIONS    OF     F.MINF.NT     LAWYERS. 


f      . 


'  «i-»S*i«a£    J-'-M  i^ 


(lis.-olvod,  mul  ii  lu-w  "wiit  i'Siud.  !  ol)si'rvc(l  the  ron- 
♦  iniuiKci'  III'  ;ill  lUDci'ss  in  the  scxcriil  ooiirts  of  justice 
(h  1  imt  jircMut  :i  (IciciniiiKitinii  ol"  the  coiiiuiission  of 
tlic  jii'lu'c^  iipiiii  the  iliMlli  (if  111!'  KiiiL;-:  iiiul  yet  no  pro- 
cess ciuilil  he  t'\('.ulcil  wilhnii!  JikImcs  niul  oiticcrs.  Up. 
on  \vh;il  iiriiulnic  lihii  -liiiU  ihi^  iiieri'  ('oiilinnimce  of  a 
(■niiimi>>-i.iii  iii\  i'j.iii;itc  :i  iii'dccss.  wliicli,  ;it  ciiiuiiion  hiw, 
upon  (lie  cvciil  ol'llic  l\ini'"  (Icalh  ccMsc'il  iuid  deter- 
mine il  '  l>iit  111  iii'Uli'iii  ii  c'l-^*'  iiKUr  ;ui:iloj:oiis  to  tlie 
]ir»-(Mil.  'riic  ; iiiliitc  I'l'  Iviwanl  tiic  Si\lh  exlciuU'tl  on- 
1\-  to  1  i\  il  'iii(-:  :  'Tiiiiiii;!!  prdfccilln^s  were  h'lt  as  they 
i^Iii.mI  III  (•(Hiiiiixii  l;i\\.  ••111(1  upon  the  di-iiiise  of  the  Kinu; 
iiliiitrd  II,-  di  ■(•(.iilimicil.  'I'hc  act  <>['  ~  and  S  WilHani  iil. 
cap.  'J7.  c'oiiliiiiu'd  all  (■<iinnn-si(in-  inr  six  months,  &(■, 
Dill  the  sulisi-tinu  (nni'iii'sinns  of  the  jiitl^i's,  alter  the 
dciii'iM'  ul'  llir  IviiiL:'.  prr\i'iil  an  aliatcnient  i"-  diseontinu- 
ani'r  III'  I  1  imiii.al  iirncc--  !  Cnidd  th(  cdiuls  of  judiea- 
tinr  piiHird  npmi  a  ('liminal  proct'ss  awanU'd  in  the 
t'.iu'  of  llic  doi  ra<o'l  kin;:  /  N"  Tlio  parliament  was 
!i\vart>  ol  i!ii-  in  tin'  liini  if  Anui'.and  providi'd  aj^ainst 
tlio  ini^ehi(  .  hv  an  I'Xpross  staliitc.  'I'lie  conrt  of  King's 
Hcncli  is  anthori/.rd  hy  i'onnni--ion  to  issue  criininal 
process:  thi'  (loxcriioi' wa- aiitiiorix'd  l>y  eonunission  to 
issue  a  writ  of -unniiDii-  :  tin-  (  riminal  ]>rocess  issues  in 
llir  Kill;;  >^  iiaiiif.  Ir>ltil  li\  lli.'  loiii  t  of  M.  15.  The  writ 
of -iiiiiiiioii<  I'm  an  as,-einM\  i'--iud  in  the  Kinii  s  name, 
tested  li\  thi'  ;'o\  crnof  :  i  lie  louiiiii-^ions  of  the  judi^es 
ol  If  II,  sultsist  after  till' liriiil-r  of  ihr  King  the  eom- 
inissioii  of  lite  (lovernor  al^o  -iili-i-^led  :  hut  upon  the 
r\»'nt  ol  the  KiiiLj's  deatli.  hetoic  ihe  sta'tite  ot  Anne, 
thi'  criminal  proc»>sf<  «'ea>-ed  and  dei.'iinin"'  :.  and  the 
oi»urt  of  Kind's  Ueiich  couhl  notpionrd  upon  it.  What 
hhall  prvvent  ii  lU'torminalion  ot  the  wni  ol  Nuinmons  or 


*-■• 


OF    THE    COLO.^iAi'j    CONSTITl  iiK.XS. 


warrant,  after  proceodinj^H  upon  it  /  Tlie  Kini;",  in 
ju(]<,Mnont  of  law,  is  a  body  politic,  to  pi;". cut  aw  intcr- 
rcjiiiiini.  Tlio  ])owi'rs  of  ^overnnicnl  l<i(l;^t'(l  in  tlic 
crown  (1)  not  drop  upon  a  demise. imt  art-  instantant'ousiy 
liiiiuled  to  the  success  r,  without  any  ces-^atinn  or  in- 
tenuis.'ioii  :  the  power,  therefore,  to  suuiumn,  prorogue, 
and  dissolve  the  parliament,  devolves  as  a  siil)sistini;- 
])..wi'r  uixlelciinined, 

JJefore  the  act  of  William,  cap.  27.  the  j):>wt  r-  of  l^ov- 
ernnient  deleicated  to  the  (jovermir.  upun  the  death  (tf 
the  Kin;i-  determined  with  the  (iominis^ion  :  and  ot'eon- 
seipieiice  the  pDwer  to  siunmon,  iimroiiue,  and  dissolve 
a^send'lv,  ceasi-d.  After  tlie  ahovt-  aid  (d  William,  the 
connnissidu  oi  the  (lovernor  did  not  iidl  upon  the.  demise 
of  the  Kin^i,  hut  remained  in  force  for  ,  i\  monlli--.  I'p- 
on  the  event,  then,  of  Kin;;  W'Uiiun's  death,  the  power 
to  sunnnon.  pi-eritijue,  and  dissolve  the  a^seinhU  did  not 
fail,  hut  >ur\  i\ f(l  and  existed  in  the  {lo\t'iiior  as  ,i  s-d)- 
si> ting  power  undeternnned. 

The  power  to  summon,  proro;:;ue,  anddis<olve  flie  jiar- 
liameiit  is  handed,  hy  the  conunon  lav>,  as  a  ;-:ili-i.-tin;j; 
power  to  the  succeeilin;;  monandi  :  the  ])  iwcr  to  um- 
mon.  proid^tie,  and  dissolve  the  as.-eudil\  of  this  pro\ - 
ince.  wa>  handed  hv  statute  law,  upon  theileuuse  of  thu 
Kinir.  a-  a  suhsis' iujj  power  to  the   (lo\.  iiior. 

Ihil  the  sncct-ediu^  monarth.  not  w  it  h-'andinii;  the 
siihsi>tence  III'  the  |inwei-  to  sinniuon,  proioj^iie.  and  dis- 
>ol\c,  e;!iniot.  Iiy  eonnnon  law,  pi'oceed  upon  the  wiit  of 
.-ininnonv  1.-  iied  h\-  his  predeces-or  .i  tie-.ii  uiit  of 
sunniioiis  MMi-t  i-siu>,  and  a  new  parlianniit  uui-t  he 
("ailed  i!id  (he  statute  of  William  e;ive  a  i:reater  lati- 
tude     '  t  he  sul)-i.-tmu  }>o\\er  of  the   (io\einoi.' 

I  I.e  -tat,  !«•  ol  W  illiam,  cap.  21.  is   enaeletl  ni  ;;eneial 


■1' 


IV2(\ 


OPINIONS  OK  KMINENT  LAWYEHS. 


ox'pi'ossioiis  :  all  coimiiissioiis,  civil  aiid  inilitaiy,  sh;ill 
roiuiiiii  in  full  lorci'  lor  six  inoiillis  aCtor  the  death  of 
the  kiiiir.  My  lord  ( 'okc  oliserves,  in  the  construction,  of 
a  statute  \vc  should  always  :;dvert  to  what  the  nii-chic  f 
was  at  connnon  law. 

Bct'ire  (he  al)ove  statute  of  William,  1>\  the  cninni  in 
law.  all  patents  ef  j\istices.  conunissions,  ci\  il  ami  milita- 
ry, well"  detcrmini'd  l>y  (he  Kinji's  death  ;  and  the  de- 
feet  oi'  mischief  was  the  anarchy  resulting'  iVom  (he 
want  of  olficers  to  |)ut  tlie  lawsin  execution.  'I'his.  tluii, 
was  the  nnschicl'tlie  statute  meant  to  provide  aij^ainst  : 
;ind  as  (he  same  auiii'chy,  upon  the  ^.imc  evcnl,  pre- 
\aileilii,  the  plantations,  theact  of  William  was  cxtciid- 
ed  hy  the  1-t  Anne.  cap.  S.  Not  a  .--yllahie  is  dro})t 
\\  itii  respect  to  the  parliament  :  nor  is  (hcic  an\'  ;;rounil 
what^nc\ci-  (o  infi-r  (hat  (hi'  nrexentinu;  ol' a  dissohitiou 
of  the  paili.iment  upon  (h(>  dcmis(>  of  (he  Kiie^-  was  an 
ohji'ct  in  contemplation  when  the  ahove  statutes  Avcre 
I'ramed.  'I'hc  di-solution  did  not  spiini:  from  tht>  deter- 
mination of  commissions  :  tlu' continuance,  (hereforc.  of 
t'onnuissidi-  was  never  meant  as  a  jitop  to  paiii  uncut. 

The  ceiehrated  IMaekstone  lays  down  the  law.  that 
a  parliament  may  Ite  diss(,lved  hy  the  demi-e  ot'  (he 
Crown:  for  (he  Kimr  hein^i- considered  in  law  tlu-  iiiad 
<'f  (he  pai-liamen(  -r,ijnit.  pri in-i^)iinii  ,f  fr'ni-v — that 
failiiiLT.  the  wli.ile  ]\ih\\  '[<  extinct.  \\  Idle  ,lie  pio\  ince 
was  in  the  hand-  of  thel'rown.  I  ask  who  \\:\s  cf/ituf, 
priHcipiniii  . /_/////v  of  the  ireneral  a--eml)i\  '  llieknij;, 
or  his  ilepiitN  .  the  (io\ cnior  '  I  aHirm  not  the  <lovi'r- 
nor  ;  upon  no  principle  ean  he  l>e  considered  at  mput, 
!•//  jii  iii,ijuii,,i  :  for  (Ih-  a>semlily  co  iinienci'd  iind  wii.s 
held  l>\  the  Kiie_;'-  writ  .i|  '-niuiuon  te-ti-d  only  hy 
the  (io\iiuor;   nor  upon  an\  principle  i  an  he  Iw  <'i)a«iil- 


np  THR  roI.ONIAI,    CONSTlTUTIiiNs. 


327 


crc'd  '/,'  /////v  of  the  froncral  ius^«3iiilil_v ;  I'or  upon  the 
(loiitli,  or  removal  of  ;i  CJovornor,  tlio  asscinbly  did  not, 
ill  law,  ('(.'iise  and  drtorminc,  hut  was  kcjjt  alive  by  thv.' 
Kiuii's  will  and  siihsisted.  Only  th<'  Kin--,  then,  could 
havf  'in'v\i  r,ij)i/f,  prii/c/j/hi///.  ( f  ^p'/ii-s  ;  npon  his  dennse 
a  di.-.soh'.tion  Inllowt'd. 

The  colnny  ofN'ii^inia  was  in  the  hanils  of  the  'Jnnvn, 
as  well  as  thi-  jiiuvince,  in  (he  leign  o  "  William  and 
Anne.  I'l.on  the  death  of  King  William  tlie  assonihly 
of  \'ir,L;iiiia  was  dissolved  :  a  fresh  writ  nf  sunnnons 
issued,  and  a  new  assemhlv  was  called:  the  siil)sistiiii>- 
ciimiiiissioii  of  the  (rovenior,  hy  virtue  of  the  statute  of 
A\  illiam  whieh  eontiiuies  all  commissions,  civil  and  mili- 
toy.  dill  not  previMita  dissolution;  and,  sol'arl'niin  onter- 
tainiii--  any  >iirli  idea  oi' the  statute,  the  ;Aeneral  asseiu- 
lily  afterward',  in  the  fninili  ij,(ir  of  (^leen  Anne, 
passed  'an  act  lor  the  continuing;  of  ui'ucral  asscmlilies, 
in  case  of  the  death  or  deiiiist>  of  H,.|-  Majestv, 
her  !ieir>,  <'r  successors,"  i^c.  Had  the  statute  of  Wil- 
liion  aiiorc  extensive  influence  in  M.uyland  than  in  Vir 
-inia  '  or  docsit  operate  dil!eieiitly  in  dillereiit  .'ohjuii'.s? 

lla\ui;j;  then  oliservcd  t  hat  the  asseiiihivof  this  ])ro- 
\  iiice  wa-diss(.Ucd  ii[)on  the  death  of  Kinir  William,  and 
lliat  the  writ  of  summons  ly  which  it  wa-  held  wa.>  dis- 
coiiliniied  or  aliatetl;  I  now  la\  down  the  p  isitoii,  :\^  a 
fund  u.ieiilal  iirinciple,  that  a  parliament  cannot  helei^Ml- 
ly  ions  eiK'il  without  the  Kin;i;'s  wi'it  of  siiininons.  And  I 
till  lli"ia--ert,  that,  h_\  the  undolited  con-litiif  ion  of  tiiis 
prvince  wIumi  in  the  luiuds  of  tlu'  ('roun.no  laws  could  he 
enacted  without  the  consent  of  (he  freemen  lc<:allv 
lalhd  loiie'tlier  and  assemhh'd  l(\  the  Kind's  writ 
of  summons:  I  do  nut  expect  to  he  contradicted 
in  this  assertion  of  the  law;  hiit  Itie  tiict  is  stated 
uri  iij,(hsiui<uinii  in  liiecase,  tliat,  after  tiiciieim.seol  King 


I 


oJ,c> 


OPI.MONS    OF  EMINENT    LAWVEFiS. 


R 


;   S 


Williiiin:  hd  I'lt'sli  writ  of  i^ummons  wns  issued.  By 
what;  jiiuIiDiitr,  then  and  upon  what  constitutional 
ground,  was  tho  assenihly  convened,  whi(di  enacted,  the 
contested  law  of  i7<IJ-2  I 

Aller  tlie  death  of  t!ie  lute  Charles,  Lord  Baltimore, 
and  befe.re  tile  general  assembly  was  apprized  of  the 
eve^it.  a  se  ■ion  was  held  and  laws  enaete.i  :  ly  tii.' 
death  of  his  Lordship,  the  assembly  was  ludd  to  be  dis- 
solved, and  a  fie-^hwrit  of  summons  issued.  Wiien 
the  general  assembly  was  afterward  convened,  a  law  was 
iminedi;'  ly  passed,  to  confirm  and  make  \alid  tlie 
several  acts  \\  hjeli  had  been  made  in  the  pi'ec(>ding  ses- 
sion, the  death  or  ilemise  of  the  said  Charles,  Lord  Bal- 
tinioic,  H'  iwiih-tanding.  What  can  be  a  ele.u'er  proof 
that  an  a  ■ein''ly  diss<dved  upon  a  demise,  and  a,.erwards 
oall(<d  without  a  ii'esh  writ  of  sununons,  is  illegally  con- 
vened, and  cannot  eiiac  *.  or  estal)lish  laws  I 

When  !  a-:-'e:t  for  law,  tliat  the  parliament  cannot  be 
leu'.dlv  .oMNCui'd  without  the  Kinu's  wi-it  of  mninons, 
1  di  nit  ro!.;rt  the  tw.)  capital  eases  of  the  rodjration, 
iiud  r''\o!iitioii  parliaments:  the  former  suiiunoned  in 
the  iiauii  ■  of  the  kee|)(M's  of  the  libert'cs  of  Knglaud  : 
the  l:it!.  r  bi  llio  naiuf  of  the  Prince  of  Orange.  l)ef<ire 
the  Clown  wa-- [I'.ared  u|ion  Ills  lu'ad.  <'liar!e<  the  See- 
Mii  1  net  til-  \n'i\<  and  com  inuiis  thus  ascend  iled  t\\f\  laws 
were  (iKicted:  King  Wilii.im.  too.  when  crowned,  met 
the  lords  and  e  )nnno:i-  thin  summoned.  ,  .d  law-;  were 
also  enacted:  both  parliaments  passed  astatute  to  e>tab- 
lish  the  several  conventions  ns  legal  parliaments,  and 
to  cme  the  delect  or  want  in  the  King's  wi'it  of  summons. 
1 1' these  cji.ses.  how eviM'  ,;ue  urged  against  me,  1  shall 
onh  r'pl\-  in  tic  l.ingnage  of  an  einineut  saj^e  nl  ttie 
law  upon  thi--nbifct  :  they  arecases  foiin<led  upon  the 
necCHHity  of  tht    ibiUL:    whliii  su|)ersedes  all  law. 


OF    THE  COLONIAL  COXSTITUTIONs. 


329 


Itlmsbeen    alle^^.a^   that  the  act  of   1701-2,    though 
\o\i\ab  initio,    has  been    liited  up  and  anhuated  by  .suc- 
ceeain- arts  ofa.sembly.       I   sliould    be    glad  to  know, 
what  .succoeding  acts    ..I'  asscnibiy    have    worked    this 
nih-acio.'   When  did  the  act  r.f    1701-2  first  obtain  the 
binding  force  of  a  law  ?     JVom  Avhat  period  shall  we  cal- 
culato  the  conunnecenient  of  its  validity  I     from  the  act 
of  1704  ?orfroni  the  actofl7];J  ?  or  from  the  actof  1715 '? 
orfrom  the  act    ..f  !7:iO  >  or    from    the    act  <,f  17(33  ^  or 
ti"'i'i  the  act  of  1771  .'  whieh  of  thoeacts  communicated 
the  ..bligatory  virtue  /    Tl  at  succe.nve  assemblies  have 
presumedanexisteu.-eoftheact  of  1701-2.  I  ireelv  admit; 
that  the  above   several    laws    recognize  it    as  an    act  iii 
lorce,  by   reference,   recital,   and   .-uppleuientarv  provis- 
ions, lalso  admit  ;  but,  that  su<di  recogniti.;n  can.    upon 
:>ny  legal  principleofe,,n-  (ru.'li..i,.  am.anit  foacoulirma- 
t!on,  I  nmst  tak.«  the  libeity  to  dvia. 

1  presume  1  may  safely  assert  that  the  act  of  I  7u  1-2  has 
never  been  rc-..na<'tcd;   but  Ihe  advocates  |i,r  this  actin- 
Hst  that  it  has   been    .■oulirmed:    the   p.,,--ition.    then     is 
tl'is.  thattheactoflrof--    ,bo„.h   v.id    a/,    i,utio,\y^ 
I'cen  conliruic.l  by   :.u,v..ediug    laws.      JMvry    .••mlirma- 
tion  nuHt  be  expressor  implied  ;    I  r,-,u  find  no  succeeding 
law.  whi,.b  ..vpre.sly  eonii,  ;,m  the  a<t;  and  an    act    void 
•'"'  '"'ti",  ••"nlirnie.l.  iiiiplic'dh  ,  by  .ni  alter  art.  i..  i,,  ,„>- 
.ii><lgme„t.ap(«rfe.-t  uovel-N    \u  the  law:    Icandidlvowu 
I  nexer.net  u  ill.  such  an  asse   (ion.  and  eonle- -r"  ;.nm- 
nuioe..lauy  statute  cxi>tiu.,  ,.,..,„  .M,di  iiuplieatiou.       I 
lK.ve  nut.  indeed,  uith  :,  uu^Kun.  po.fa'ion,    l,ye.s  ,n-in. 
|v.v  ul,n„,un(:  subM.,uenl  l,,ws  raneel  .uid  r.^peal  pnred- 
'Mglaws:    but  this    UMxin,,  b,   fVom  ^upp,:,ting.  defeats 
the  assertion, 

It  is  an  e^..bli.hediule.„l..w  .hat    statutes    b.v..  .... 

4o 


• 


Il""' 


smi 


OlMMONS  OF   EMINENT  I,  AW  VERS. 


loti-nspo.'t  ;  th"y  look  lorward  onlv  an.i  ]irosciil)o  lor  the 
time  to  coiiK"  ;  for.  np-m  no  i^-iiu'lplc  <■!'  uiitural  justice, 
can  a  man's  actions  lull    as-Mup  nisancc    of  a  Irav 

made  and  cnactcl  './■  !">^\    '  :  ,  v. iuMi  an  act.  origi- 

nally void, is  coulirm-l  '.y    n  after  act,  the  a<-t.  thus  con- 
finiicd  operates  a!,  inifr,  amlattaches  upon  the  time  mes- 
ne, the  coinmeuc't,  and  ccmiirmation  of  it  :  and,  therefore, 
the  act  eonfirmini;' has  a  clear    retr(>s])(-'ii>  "    P' ^  t.     By 
tlK'  act  ol'  1701-2  many  painsand  penalties  are  inniosed: 
the  first  iict.  ndied  upon  as  a  confirmation,    is  the  act  ol 
1701:  three    years    and    upwards  then,   had  the    act  of 
1701-2  <lept  without  the  sanction  of  !i  law  :  in  tliat  inter- 
val of  time.  ujM.n  a  suj^position  of  the  nullity  of  the  act 
ori.-iiually.  every  ]>re;'ept  mi-ht  have  heen  lawfully  broke 
without  appndieiisinn  oi'paiii-  and  penalties  ;    hut  if  the 
act  of  1701  operate-^  as  a  coiilirmaticn. every  such  breach 
in  the  inter\  d.  thou<i-h  clearly  a  lej;al    act    at    the  time, 
bei-omes  criminal  and  subject  to  ihe  punishment  imposed: 
this  is  contrary  to  natural  justice.      Wenvv    the    muxim, 
JVoni  comhtnlhifut'irhhrmnin  il-lni  inijxjnm:  n»ip>(iclc- 
7i(is,  which,  in  substance  is,  statutes  have  no  retro.-<])ect: 
when  an  act.  therefore,  is  oriiiiually  void,  the    law    will 
never  woi'k  a  conlirmation,  by  constru^'tion  or  implica- 
tion. 

An  act  of  parliment.  indeed,  when  express  ui»on 
the  point.  I  admit  will  bear  ilown  the  law  and  principles 
,,r justice:  but,  when  iin  a.d  is  not  plain  and  express,  no 
(■xpo^itio^  can  prevail  which  i<  rcp-,i;:naut  to  natural 
riuht  and  e-^tai»lished  maxims. 

Amoni,'  the  old  statutes  wt'  meet  with  a«'ts  recouiii/ed 
that  are  not  to  b(^  fnnntl  on  record;  tlu'  vecoi^'n.itiou  of 
them  by  succeedin.i;  law  i^  j::ood  evi<leiue  that  >U(di  statute 
unco  existed;   they  are  received  and  prevail  as   statutes, 


r^ 


ME  COLONIAL  CONSTITUTIONS. 


331 


not  as  lij'toil  up  or  aiiiiuatod  by  thcstatutes  wiiieh  reco^-- 
iiizc  liicm.  hut  as  oiijrinul  statutes,  made  and  enacted 
npoua  constitiitioiial  foundation  ;  the  recognition  operates 
only  as  presumptive  evi(h'nce  of  the  fact.  But  when  we 
ciin  ;,'o  hacknnd  lay  our  hiiiids  upon  the  very  statute  it- 
self; wIkmi  e  c;in  tra<-e  the  foundation  of  it  and  show 
it  ori/^inally  void  from  the  ,  learest  .irrounds,  what  avails 
a  nuked  reoo-iiiition  .'  Kvery  presmiiption  ceases  when  the 
contraiy  is  pro\ed. 

It  has  heeii  ohjected,  that,    upon  a  supposition    of  the 
nullity  ..f  the  ac^of  ITol-li  the  act  of  1700  must  he  exist- 
ing ;      1  have  no  such  conception.     If  the    act  of  1701-2 
was  void  (tJ,  iiikio,     the  act  of    17<I0  was    in  force  when 
the  :\rt  of  17(11  was  made,  and  therefore  expressly  repeal- 
ed.     Mut  then  it  is  ohjected,  that  the  saving  clau.-<e     of 
the  art  of    1704    jaevents  tli.'    repeal.      This   objection 
scarce   denmnds    the    ceremony     of  a    refutation.     The 
saving  <da  use  expressly  extends  to  such  rights  and  benefits 
oidy  had  uccrued,  and  were  then  actually  vested.  Was  the 
l)resent  claim  of  the  foi-ty  per  poll  by  the  i)re-^ent  clergv 
a  right  ami  benelit  which  had  then  accrn',>d  and  actual. 
vestc(l  >  Sni'el\  the  cli'rirv  ot'this  i)rovince  are  not  a  bodv 
politic  with  acapacit\   f-i  take  by  succession:    nor  is  the 
forty   per  ])(>11  a  trau-ini.~-il)le  right.     Tlu.  saving   clause, 
with  respect  tn  the  lii^hls  of  the  clergy    was  spent  up(m 
tlie  ilropping   of  the   :ip[)()intments  or    inductions  which 
Mere  then  in  being. 

.M_\  opinii/u  then  is.  that,  upon  the  demise  of  King 
A\  iiliam,  the  as>euilily  of  ihi-^  I'roviuce  was  di.sjioh  ed  ; 
th.it  the  assembly   which  alterwards    met    and    -  na'dcd 


i ' 


W 


'I  \\ 
I  ^1 


'^90 


OPINIONS  OF   EMINENT  LAWYERS. 


the  contested  forty  per  poll  law,  being  called  without  a 
fresh  writ  of  summons,  was  illegally  and  unconstitu- 
tionally  conveneil ;  that,  therefore,  no  obligation  can  re- 
sult from  the  said  fortv  per  poll  act,  as  a  law. 

"Will.  Paca. 

August  1"),  1772, 

Fifth. 

Of  the   want    of  .sovereignty,    in    t!ie    Governor    and 
Council,   and   Keprasentative    ))ody.  when   met   in  As- 


se 


n\l)lv 


(1.)  The  opiniou  of  tl:<-  Atfometj-Geiuval  Harcouvt, 
on  the  irnproprietn  of  an  art  ef  recognition  of  Queen 
Anm-.  h>j  tlie  AsseniH;/  of  Mariihtnd. 

As  to  the  act  entitled  -'an  act  of  recognition,"  altho' 
the  sai.laet  be  an  instanci-  of  the  fidelity  of  the  inhabi- 
tants of  this  province;  \et,  in  regard  the  said  province 
is  entirely  dependei.t  .)n  the  Crown  of  England,  and  no 
such  law  has  been  thought  proper  to  pass  in  England, 
since  Her  Majesty's  aceessi'.n  to  the  Crown  ;  I  humbly 
conceive  such  a  law  was  iini)roper  to  be  passed  by  the 
assembly  of  this  ])rovince, 

Sl.M.  II\R(  CURT. 

Sept.  IT,  17117. 


r 


^*.^m 


OF  THE  COLONIAL  C0N3TITI;  ;•:'^^'s. 


Q9" 


(2.)   TIlc  opinion  of  fhe   h.olicitoi''U 
on  thclimited  effect  of  mi  oH  o 


Thomson, 


A  9    ni'J.f* 

To  iho  Rigiit  Honorable, 
Till  do  and  Plantations, 


li.itrnVi-  iion   I> 


V  tfii 


theL 


lOn. 


U|),S 


\,'(, 


i^'sioiiors 


for 


ps    I'onjiiKuid.s.  .signified 


ler 


May  it  please  yonr  Lords! 
In  oiK'dience  to  your  Lordsh 
ton.el.y    William    Popple    Esq!,  the  10th    oC  Deroml 
last,  I  have  considered  the  bill  to   naturalize    Jacol)  Ar- 
euts  and  his  three  children  in  Nev  Jersey;  and  as  sueli 
naturalization  can  have  the  effect    to   -iv-e  tb.oni  a  riirht 
toen'')y  the  privi:eges  of  natuial  1 


province  only,  J  do  not  sec  any  o])jection  to  tL.  ^ 

thi-    ict,  since  the  assembly  there  think  them  proper  ob" 


jorn   sul)jects  in  that 


le  passuu 


^  jects  of  that  favor. 

March  r,    171S-19. 


WiM,.  Tfiomson. 


(:l)  7h,oj>in'v,  of  the  Alt(yrncy.(hnorol  Mun'a,i,  on 
the  qucsiion,  ichether  an  a%mnl>ly  rai}  i>njK>^e  a  ,Ii,],j  on 
the  iniporUitioo  of  convicts'  into  a  colon  >/. 

This  Stat,  .to,  4th  Geo,  I,  c.  li,  for  the  more   effectual 
transportation  >f  felons,     Iter  recitin-  that  it   had  been 


*  In  l,;3,s,  Ooveri.or  Nico'son,  of  Aluryl  .nJ,  wr,,.,-  tl,e  U,-„xl  of  trmlo  ■■  tl.at  l.o 
always  an,  M  a  ;,rnTiso  tob*  in^^rted  in  the  «,-,.  of  nahiralimion,  that  ih.y  .1m..,1,I 
not  o,^rate  ni::„nst  th-  statute  of*  a.ui  S  Will,  111.'  (;,,.., ,,„,.■  Sty.p...,,-  or  th.- 
same  ,,rov.,..,-o,  ooscr-tj  to  the  ,.  a„i  of  tradr,  upon  «„  art  of  nanuoli.a'io,.'  of  .1,.. 
ivlarylan.l  a^.^mHy,  1704,  ■  tin,  is  only  ,n...nd«l  ,o  .n„M.  ,|„.  ,„,„i,.s  to  .uncliase 
lan.ls,  h„,  no,  to  4uahfy  th,.,n  U.  trade,  or  to  ^c  owners,  .h  m.,.s„  rs  „f.l,ii,.s,  a  b-ir..^ 
always  uckauw.,.,l^-r,l,tlmt  any  art  of  Datural./atioM,  ma,l,.  i„  ,l„s  ,,„vinr,.  «■ 
ln„l.  not  l,..yon,l  ,t,  l...;nt.  •-•.rcumscr.bcd  by  ,l„.  7  an,i  S  Wiil.  li.  for  ,„-n-,„'„n^ 
Iraiuls  III  tilt  pliuitaiion  trade.  " 


'I 


tl 


^':  v^ 


^M 


OlMMii.N'--  OI'   EMINENT  LAWVERS. 


found  Itv  i"\[K'ric'iicf  that  tho  pnnishniciit-  intlictod  by 
tl'o  law- a<:iiiii>t  till-  oMVii.  .-  therein  oiumuM-'^ed  had 
not  provod  clliM'tual  to  deter  ihtsoiis  from  ll  se  erimes: 
and  thai  many  otieiuh'rs  to  wlioii.  loyal  mercy  had 
been  .-\tended  n\nm  r.aidition  of  tiaii-iiortin^'  themselves 
to  \\\r  \'\\-I  Indies,  had  often  iie<rlo(ded  to  nerform  that 
CMialitinn  ;  and,  that  in  many  of  His  Majesty's  eohmies 
and  iilantatio;i<  in  Ameiii  a,  theie  was  ;j;reat  want  of  ser- 
xantswhnhy  their  lah  )r  and  industry  mi^ht  he  the 
■inea.i-  of  !mpro\  :  I'i  and  niakini.'  the  said  <'oionies  and 
plantation-^  more  n-efid  to  this  nation  :  enacts,  that 
Avhere  a,UV  pcrs-MH  siiall  l>e  convi.'ted  of  tlie  felonie-^ 
theivin  ^l".rcliied  it  --hnidd  he  lawful  for  thec'Urthe- 
f,.ir  wliom  th>'y  were  <'nnviited  to  order  sn(di  olfenders 
to  he  senl  I"  -'iiie  oHIi^  Majesly  s  colonies  an<l  planta- 
tion- in  Amciica.  f'l-  th.  -evm-al  terms  ..f  seven  years, 
■;„nteen  ycai-,  or  f.r  life,  (accordin.i;- to  their  resp.-.-tiv 
.limes.)  and  to  eonvvy  ,  transfer,  and  make  over  snvh 
oil'end.'r.s.  t  )  til  •  n^.«  nf  an.\  p-rson  who  shall  .-on'.ract 
for  tho  IK rforma nee  of  MP  ii  tr'n^portatinn,  and  to  his 
ii.>*.-«i.uns.  [\>v  >u(di   terins. 

11  :d>oena<-ts,  that  mlIi  ...ntrartor  shall.  previon<  to 
thr  d.  li>ery  of  .Mich  ..ll'.'ndri-  to  !iim,  to  l>e  transport..!, 
giv.;  sntfpi.'Mt  seenrit.N,  t.the  -ati<fictiun  of  -mdi  onrt 
i-lVc"tiiali'.  lo  transport  Hich  otVendei  ^  lo  >ome  of  His 
Maiest\>  cnl.mies  and  plantations  in  .\iiHiir:.  as  ^hall 
be  ordel-ed  by  the  said  eom-t.  and  proianr  an  autnentic 
certifioato  from  tiir  (Invei  n^r  oi  .hi.f  ( 'u-inm-;bmse  ..|- 
Wvw  i\  lh<  I'h.ce.  (uliich  ..■rliti.'ate  thev  are  thn-hv 
,.,,,, „i,,.d  to  jjive  fufthwith.  NMthout  fee  or  rewani,  as 
soon  as  e.nivenicntly  may  be,)  of  '1h'  tandm-  of  mi.  h  ..f 
flMulersso  transferred,  ...^  aforesai.l,  in  tl  at  pla.'c  whereto 
they  ^luiU  be  ordered,  (death  and    casualtien   of  tht  »ca 


mi 


t.K  TiiK  COLONIAL  (.o.%bjr:iniu.\s.  SSP) 

excepted,)  ami  that  none  of  the  H.iid   oll'eiKhTs    shall    he 
.  siifleivfl  to  return  IVoin    the    sai.l   I'.lace    to    anv  i.art    of 
Great  Hritain  or  Irelaiul,  hy  the   wilful  deliuilt    of  .sueli 
eontraetor  or  his  assi^fjis. 

This  statute  likewise,  oth  fie...  1.  <<.  '2:\,  lor  the  more 
ellectual  tnuisi)ortatioii  of  felons,  e-iacts.  that  all  eluuM.-- 
es  in  and  ahout  Makiiiir  the  eontracf<.  takin-- se.iu-ities, 
and  eonvevin.u  of  fehuis,  in  order  to  he  traii.|H,rlr,L 
Mhall  he  i.orne  in-earh  ••ounly.  rid. ii-,  division,  iihi'itv, 
or  plaee.  for  which  the  court  was  held  fur  ordering  such 
felons  to  he  transix.rted,  an-l  diivrls  tlie  luannei'  oi'  the 
nayuKut  of  it  l)y  th-ir  tre;' M;rer  to  the  contra. '(oi-. 

A;,'recahle  (o  these  statu!. ■^,  >uch  c.nitra.ts  ii,r  the 
transportation  of  feh.n-^  have  hithcit..  hrt-ii  ina.l.'.  the 
expenses  (here.. f  1)1)111,.,  su.di  h.-mh  e\e.-ntc.|.  and  su.h 
certilic:ites  .if  their  landinj:'  ahr.'.'id  pm.  ui..i;  hut  tic 
iiicr.diant.  wh..  usuall\  .'.aitra.-ls  upon  this  n.ra^nii.  ^.^^ 
ii.^w  recejv.-.l  a.hi.c  from  his  citrrespnii,|,.|,t  ;,(  \,\;u-\. 
lau.I,  that  tii.-ass..m!.l_\  nf  that  .■..|.,n\  have  ihip.iMMi  a 
tax  i.f  f<  riy  shillin-s  iip,,n  vvviV  e.tuvic!  I-  h,.  lau.hil 
til. a.-. 

Su.h  V. It. •  of  (hat  a^srnihl\  uuist  iieee.ssaril,\  pruihi.-o 
"ui- ot  th.'  -  tw..  .ouM'.pi.'M,,..,  .ith,  r  tliat  th.-  courts 
'"■'■'■  '""-'  ""'  "''I''"-  III.'  I.'f.n-  t.i  !„■  Iian^p,,rtc.l  to 
.Mai\i.iu.l,  .>r  an\  addil  i.iii.,l  .-xp.  ii>c  <,f  |,,||\  dnihuu: 
\>rv  head,  t..  he  paid  ly  tlir  IreaMu.a-  <<\\\iv  ■•  uuIn,  \c. 
fnmi  wlu-nce  .su.h  f.l.ais  shall  Uv  Iran-p..!  l.d   ,,iid  w  hi.h 

expense,  .so  hir  as  relatis  t.>  I .|,,n    Middl.sox,  andthu 

liunie  circuit,  (  from  uln.l,  phice.s  the  trauMports  are 
\'T\  nunu'rons)His  .Nhi|r..t\  han  heen  p^raciously  pleased 
I"  take  upon  Inmseif  and  t..  pa\  .ait  .,f  hi.  ,,xv,i 
pin-.' 

V««'"(.     Ha\e    the   a,^i  uiltl\    of  that,  <m    any    other 


■I. 


« 


m] 


OIMMONS  OK  EMINENT  LAWYERS. 


cnlonv,  authnrity  to  pass  «uch  law;  and  if  tlu-y  have 
not,  ("aunot  \hc  contractor's  agent  demand  the certilk-ate 
pivscril.eil  l.\  tlu-  statuie  >.f  the  .'onvic-ts  being  landed 
there,  without  luyment  of  such  tax  .' 

lam  ofopiuioii  (hat  no  coU)ny  ean  make  such  a  law, 
l,ccau-('it  ^eclnsto  nu'  in  direct  opposition  to  the  author 
ity  of  file  lurlianicut  of  Great   Britain;  hut  tlie  charter 
,.t"  Nhir.\lau<l.  aud  power    tlierolty    o;iven  to  make  laws, 
is  not  .stated.       Then*  always  is   a  restriction  that  they 
shall  not  he  .outrary  to  the  laws  of  Knirlaud  ;    t)ut  this 
matter  dioulil  l-c  >ct  ri-ht  hy  a  proper   complaiut  of  the 
law  it.>ilf.  and    Mr.  Shari»e  seould  he  acjuainted  wilf  it, 
i„   ,n'<h-v  to  his  takiu--  the  proper  steps    to  have  the  law 
,vi,eah'.loi-.lc.!arcd  null;   for  it    is    a    matter  of    public 
concern  and  (lero.^at.-r\   to  the  ','rowu  ami  lc,-i>lature  of 
r.rcat    Ibitain.      I'.y  the    ^ame  n-aMUi  tlu'y    mi-ht  la\  a 
dnt\  up:M\  oiM'wa   prohiliit   British   -(.oil-. 

Wll.l..     Ml  KIIAV, 

Ma\    li.   177"'. 


(1  )  Mr.  n'cW >,  ojii III' n  ">'  I'"'  '/'"'"'"'  "'""'/'<-■*'•'" 
imuth^  ,iiiiina,cid  idienin  Uic  Cruwi,  i»hJ>l  './,nillh. 
U(t  o/t'iC  /'riiusijiraniu  Assnnlilij. 

To  the  Ui-ht   llouorable  (he   Lord.-.  Uonnnis.-,i()r-ers  for 

Trade  and  IMaiitations. 

Ma\  it  please  yi»ur  Lordsliips  ; 

Inolredienee  to  your  l,Miibhips'  eonnnaiul^  sijinitied 
to  me  by  Mr.  SiMMvtary  I'opple.  1  have  j- iummI  theehar- 
ter  of  rennsylvania  tmnsnutted  to  me,  and  iKuticularly 
(■onHidered  those  ehiuses  tUen-iii  nhich  relate  to  th»' 
powers  of  enaetiiiK  laws  u\  that  pro\  in.-.  ■;  and  in  an- 
swer to  the    i\r^^    (juesticm    wlm  h  \ nur  l>.aii>bip.-  havc 


OF  THE  COLONIAL    CONSTITT'TIONS. 


337 


boon  pleased  to  propose  to  me,  1  am  of  opi„i„„  that  there 
is  nothinjr  in  tfie  said  charter  by  whi(d.  the  inhahitnnts 
of  the  said  province  are  proliihited  the  re-enactins,  in 
their  j,reneral  assembly,  the  substance  of  any  laws  which 
inay  at  any  time  have  been  disallowed  by  "the  Crown. 

As  to  the  second  (piestion,  likewise  proposed  by  yonr 
Lordships,  I  am  of  opinion  that  the  six  months  during 
which  any  laws  passed  in  the  said  provin.v  are  n>].c;,la" 
ble,  are  to  be  counted  from  the  time  of  flicir  bcin-  .le- 
livered  to  the  privv  co.n.cil  ;  nnd  thercf,.re  u.des's  the 
M-entsof  that  prnsince  do  d.diver  duplicates  of  their 
I.,  .vs  unto  the  privy  .■oun.'il  at  the  same  time  as  they 
arc  dcliv.u-ed  unto  your  I.ordships,  the  tinu>  during 
wbi.'h  they  remain  uiili  your  Lordships  can  mak.'  no 
part  of  the  six  Ui  mtl.s  ;  ',„t  the  said  six  months  must 
in  such  case  be  reckoned  from  the  tinu-  liicv  arc  deliv- 
ered to  the  privy  onnci!  sulv<c,,ucn,  to  yom'-  LordsbipV 
report. 

ill.  n.  Wkst. 
Marcii  lil,  JTlS-in. 

(•.  )  Tin  i.pininn  ,,f  (h.  Aticiin,!  ai„/  SoHritar-Geue- 
rulj:,t,ii„ni„l  .in.l  Ynrlr,  irIotii„j  to  fhe  time  vh.  „  the 
thi'i'fifcar.^utr  l!,,  Kn„j><  approval  or  rt-pcalof  the  Mast- 
mdni-'^ittx  (irt-i  ((/miiumtil. 


Tntlic  Hi-ht  linnoruble    the    l^ord.    ('ou.m,>., ts  for 

Trade  and  riautationn. 

May  it  plea»<e your  Iiordship>  , 

Inobclicn."  to   vnnr   Lordships'  romnmnds,  signified 
to  us  by  letter  from  Mr.  l»oppl        f  the  31«t  of  Mav  last, 

trnnsmittingto  ns  ft udo.cd  extract  of  the  charter  of 

the  MassaclMi>,dt>-nay,   and    also  of  the  (iovernnr'n  in- 


Mi 


S38 


OPINIONS    OF  EMINENT  LAWYERS. 


I 


M 


i  m 


stnictions,  and  I  hereupon  desirin<?  our  opinion  whether 
the  three  yenr^  in  whieh  Plis  Ma.je.sty  is  cither  to  re- 
peal or  conarin  tlio  acts  passed  there  are  to  be  deemed 
to  connnenee  from  the  time  that  they  are  revived  either 
by  the  board  ol"  trade,  or  by  one  of  His  Majesty's  princi- 
pal secretaries  of  state,  or  from  the  time  they  arc  pre- 
sented to  His  Majesty  in  coimcil  for  his  pleasure  there- 
upon :  we  have  considered  the  sad  papers  and  the 
questions  referred  to  us  thereupon,  and  are  of  opinion 
that  the  three  years  allowed  by  this  charter,  either  for 
the  repeal  or  cnnfirinaticm  of  such  laws,  are  lo  \)v  taken 
to  commeiK-e  from  the  time  tii.'y  are  re^pcctively  pre- 
sented to  His  Majesty  m  his  privy  council,  the  words 
of  the    clau'^e  bcin.u-    plain    and    express    for  that   pur- 


pose, 

June  L>,  1721i. 


KoB.  Raymond. 

1*.     YOHKE 


(G.)  Thi  oi>(iii"ii  "f  thr  Attonx  ii-(n  )i< ral.  Soiihnj, 
of'  th,  IhI'I  ifects  of  trmpovanj  ,ui^  of  A--^<vilhi.  v-hirh 
in  hi-  fi<hjincnt  coubl  oiihj  he  renmUed  ///  <tii  art  of 
parl'anunt- 

T.' the  r.i^dit  H(<norablc    lUc    l.-ad-'   rommission<r.     nf 

'I'liHJr  ;iud  I'lantatinn-. 

.Ma\   it  pliM^c  your  L(ird>hips; 

In  (.lirdi.'ii.v  tn  your  I.onlships'  .'ommands,  sipiificd 
to  mc  l.N  Mr  rni'I'h-,1  liave  cou<id.TOil  of  tlie  several 
pai.n-  tiiiUHtiitIrd  t-uh,  au<l  iincwitb  rcturm'd.  and 
your  L(M-dshipshaviu-;  demand.d  my  ..pinion  U)  your 
ivtmninu  a.,  answer  to  the  order  ot  the  Lords  of  the  com- 
mittee (.f  the  cnun.il,  dated  the  '»th  day  of  .luue  last, 
wherebv  %-.n   l,.„dsbips  were  de.-*ired  to    cxanune  Hud 


OF  THE  COLONIAL  CONSTITUTIONS. 


339 


inform  yourselves,  liow  and  by  Avhat  jfrants  or  authorities 
the  plantatiijiis  in  America  doelaini  the  liberty  and  pow- 
er of  inikiii;;  temporary  laws  to  contuiiie  in  force  for  so 
short  ii  time,  whereby  Her  Majesty's  prerogative  of  ap- 
provin<^  or  disapproving  such  lavrs  is  evaded,  and  to  pro- 
pose to  that  eonuihttoe  what  methods  you  shall  judge 
most  proper  to  he  taken,  in  order  to  the  setting  aside 
those  practices  so  prejudicial  to  Her  Majesty's  interestand 
the  trade  of  h.-r  subjects  :  and  1  do  most  humbly  certify 
your  Lordships,  that  us  to  such  hnvs.  which  are  made  in 
Ker  Majesty's  plantations  not  granted  in  property  toany 
subject,  the  iuischief  comi)lained  of  nii-y  be  ])revented 
by  Her  Majesty's  instructions  to  her  (iovernojs  thereof, 
andthci-e  is  already  among  the  instructions,  acopv  where- 
of was  sent  me,  a  full  inst.aictii.u  for  that  purpose  ;  and 
therefore  all  thatl  conc^u.u  necessary  to  be  further  d(me 
as  to  thiMu.  is  t:)re(iuire  a  due 'bserva  uce  of  that  instruc- 
tion, by  Her  Majcstv's  Governi.iy, 

A>  to  law  to  be  made  in  tlic  pr<.|iii(.tar\  iilantationi-  \ 
:iii:('rii|.iiii<.ii,that  mi<chicf  cannot  be  remedied  there  but 
!y  act  ofparbameiit  ofCreat  Ibilain  ;  I'or  that  tlie  pro- 
prietors thereuf  have  a  right  ve-t*  .1  in  lih-ni  ufthe  power 
nf  making  laws  granted  by  their  charteis,  imkI  are  not, 
nor  v.'u  ni.w,  be  put  under  any  ofhei' restraint  or  regula- 
tion, Ihaii  such  as  aic  cMntained  in  tiicir  -e-pectixc  char- 
tp.rrt,  hut  by  act  ..f  |.nbamenl. 

As  torenmyivania,  directions  weie  gi\en  f.r  perfect- 
ing'the  a;<retfmeiit  with  ,\|i-  I'eiin,  and  {\>\-  preparing 
ituactof  pailiauK  lit  toMipply  hi>  in^apacit  w  and  toalter 
the  lllelliod  complained  nj'as  to  tem|'inrar\  law,-,  am!  thi' 
time  limib-d  lui  tiaiKunltiiig  and  approving  laws  made 
liieie;  but  during  tiie  la-t  -e->ion  of  p.irliament,  a  bill 
lUi-  tiiat  pinpo-<e  could  n^t  be  settled,  in  regard  of  .-ome 


t  * 


( 11 


340 


OPINIONS  OF  EMINENT  LAWYERS. 


diflerences  betwecu  the  mortgagees   aiid  family  of  Mr. 


Penn. 


I  observe  that  there  is  not  any  obligation  by  charter 
to  re+arii  the  laws  made  in  the  proprietary  plantations 
of  Connecticut  and  Rhode  Island  for  Her  Majesty's  ap- 
probation; and,  therefore,  there  will  also  want  an  act 
of  parliamejit  to  oblige  them  to  transmit  their  laws,  and 
to  have  tliem  si'l)mitted  to  Iler  Majesty's  approbation. 

EnW.    NORTHEY. 

July  22,  1714 

(7.)  'I'ht  opinion  of  the  mme  hwijtr^  conccniin/j  flic 
ilhijdiitij  of  tJie  I(</i6-l(ifire  procx-JiiN/.^  at  Ntw  3  ork, 
ih/iiiii-st  liiiijiivi^   ind  Ilittcfiiii-s. 

To  tlie  Right  Hon.,  the    Lords  Commissioners  for  Trade 

nnd  Pl:int;itions. 

M;iv  it  plc.'ise  M)ur  Lordships  ; 

in  111  ■ilicnct'  to  vour  liOi-dsbiTi-!  order  of  r^'fen-nce, 
siLLiiilitii  to  nil' 1)\  Mr.  roj)])!)'  jinii'.,  I  have  considered 
olnii  act.  pa->cd  at  New  Vori\,  en'itletl  an  act  for  decliir- 
ing  the  illegality  of  tiic  proceedings  against  Col.  Nich- 
olas IVi\-,ird  and  .Vlderiuui  .Tohu  Hutchii' ',  for  pretend- 
ed hi'ih  Irt'ason,  and  for  reversing  and  making  null  and 
void  the  said  judgment  and  all  proceedings  thereon; 
and  ilo  Innnltly  certify  your  lioru^lii|)s.  tiiat  Her  Majesfy 
ha\  ini:,  l>\<iiiler  in  council,  ot  the  ISth  of  Dec  I7'il, 
directed  that  it  should  be  signilie<i  to  the  (lovernor.  or 
Counuandei-iu-iliief  of  New  Voi-k  foi-  the  tinw  being, 
that  Colonel  Nicolas  Hayaid  and  Ald'TUian  Jolm  Hut- 
chins  do  enter  into  r(  co^ni/anee  on  record,  with  condi- 
tion tliat  t!ie\  will  not  bring  any  action  ag»in.-t  an^ 
person  who  bad  acttMl  in  tlu' prosecution  of  them  by  order 


OF  THE   ";OL():<IAL  CONSTITUTIONS. 


341 


of  those  who  hud  power  to  conuniuid  them,  or  tlmt  a  new 
Mil,  with  a  clause  of  indeiuninculion,  Ik-  transmitted  for 
Her  Miiiestv's  approbation;  and  it  not  appearinir  that  such 
recognizance  was  given  and  the  act  now  transmitted  de- 
claring and  enacting  that  tlie  proceedings  and  pi-osecu- 
tions  aginnst  them,  are  and  were  undui'  and  illegal,  and 
no  clause  nf  indenuiification  heing  in  the  same,  Ilo'  Ma- 
jestj-'s  order  not  heing  complied  with  the  same  olijcctiim 
remains  to  this  act  as  was  matle  to  tjicaci  Icrmcih-  trans- 
mitted. 

KjiW.     XoKIllKV, 

March    11    170-J-O. 


1  H 


i:'!    i 


(S.)   7  //,  ()piiiii)ii  of  the  Atiorui  ij  tiihl  SnJirlf,,i-<; .  iie- 

I  '111-  J II 
Cnniii  rtinif  to  iivikr  fiUi's'. 


raf.    )'//■/>   KHi/    I'lilliot,  oil  'III-  jioir,  r  ni  ij,,    .\-^^<  iii>'l  if  of 


To  the    Uight    Ilon()rai)lc   the   Lords  ( ',Mllmi•■^;(lll('|•s   I'oi- 

Trade  and  l'iantati(ins. 

Mav  it   |ih'a-  c  yonr  L!)i-d>jiips  ; 

111  uhciliciici'  to  \(tiir  Lordships'  coniiii.tiul- ^ioniiicd 
to  us  li\  two  letters  from  Mr.  r.-pplc.  tran>,iiit tiiiu  to 
us  copies  111' the  charter  of  the  colony  of  < 'oimecticut, 
and  of  ihe  mi-morial  of  .lolui  W'inllcrp  Km|,  hereunto 
auiicxed,  and  desii-iiig  om-  opinion  in  point  of  law, 
whether  ihe  s;,i,i  ,-,,|oMy  have  therein  any  power  vested 
uitheni  of  making  laws  w  hich  atVect  |»ropei't  v.  <ir  wheth- 
er Ih.it  powei'  is  not  confmed  to  tin'  lu.ikiiiL-  "f  !.\-laws 
only,  and  \s  helher  if  they  h;i\,.  ,|,,(  (ji,.  |,owi  !■  of  innkiii-- 
laws  aJleeiinu-  piopnty,  they  ha\i'  not  foi-|eite,l  their 
charter  hy  pas-ing  such  law^  :  we  have  conHdered  Ihe 
said  ehaiter  and  memorial  and  are  of  opinion  il^t  l.y 
the  Maid  charter,  the  genera!  asscinhly   of  the  ,  aid  |mo\- 


t  A 


!  ii 


•i 


?.       \ 


\^    : 


342 


OPINIONS  OF  EMINENT  LAWYERS. 


ince  have  a  power  ol"  making  laws  which  allect  proper- 
ty ;  but  it  is  a  necessary  qnalitioation  of  all  such  laws, 
that  thay  be  reas()nal)k>  in  themselves  and  not  contrary 
to  the  laws  of  Eiigland  ;  and  if  any  laws  have  been  there 
made,  repugnant  to  the  laws  of  England,  they  are  abso- 
lutely null  and  void. 

P.   YoRKE. 


Aug.  1,  17:i(>. 


C.  T.\LnoT. 


(n.)  'I  h, opinion  of  Mr.Laml)  ou  a/c  i/sin-ped  A-s- 
setn^i^U  ill  Su'ith  Ciiruhiiii. 

To  Ihc  Tviglit  TIou.  the  Lords  Commissioners  for  Trade 

and   I'liintations. 
M\  Loids 

In  [)Uisuauc('  oi"  your  Lordships'  connnands,  signified 
to  nie  liy  Mr.  liill'<  lettei-  of  the  *Jd  insta.at,  wherein 
^■ou  aro  pliMsed  to  de.>-irc  my  opinion  in  jioint  of  law,  up- 
on ilif  rollowing  act,  ])ass('d  iu  Soulii  Carolina,  the 
llith  Oi"  l'\lirii,ii  \ .  171'.'.  1  have  perused  and  considered 
the  same,  vi/- ;  -an  ail  for  rcguhiting  the  comts  t)f  jus- 
tice." 

This  act  is  of  a  \ery  cNti-aordinary  natinc,  and,  was 
it  now  sent  over  lor  His  Majesty '.s  apitrobatiou,  I  should 
make  iikui\  oli'|ei'[ioii>  tiirreto;  hut,  as  it  is  not  sent  over 
for  that  |iuipo-e,  I  .-inll  omit  those  oDJections  as  being 
unnecessary,  and  ouK  ob-ei  \e  how  tiiis  act  apjiears  to 
me,  whieji  1  liiid  to  ha\c  been  pas.-ed  in  the  time  this 
province  belonged  to  l!ie  l.onU  i'roprietor.<,  Imt  tlie 
sanu'  has  never  been  n  nliiiiieil  b\  tliem  ur  the  Ci  .vn. 
And  the  time  it  pas.sed  was  when  tiiis  pr«)vince  wa«  in 
great  confusion  anil  the  inhabitants  opposed  tlu;  ])ov\i'!- 
•  >f   Ml.  Johnson,  the   Governor  then  a[)[ioiiited  b_\    the 


or  THE  COf  ONlAt,  CONSTITUTIONS. 


343 


Lords  Proprietors,  and  chose  a  Gov.  themselves  who  passed 
Uii.s  act  without  any  authority  .'^o  to  do  ;  and  as  it  appears 
by  Governor  Glen's  letter,  without  the  proper  consent  of 
the  other  branches  of  the  legislature,  the  asseiul)ly  hav- 
ing before  that  time  been  dissolved  by  Mr.  Johnson, 
the  legal  Governor.  lam  therefore  of  (tpinion,  that  this 
act  wiiich  was  obtained  and  passed  by  an  usui-ped  authori- 
ty, should  not  be  considered  as  a  law;  and  it  apj)ears  by 
Governor  Glen's  letter,  it  has  not  been  considered  so  by 
the  practice  that  has  been  in  use  since  then  concerning 
matters  contained  in  the  said  act.  As  to  what  is  con- 
tained in  Governor  Glen's  letter,  about  removing  one  of 
the  assistant  judges  how  far  he  has  acted  in  that  respect 
conststent  with  his  connnissiou  and  instructions  and 
whether  there  was  sullicient  reasons  given  for  so  doing, 
nuist  be  submitted  to  your  Lordships,  lioui  the  informa- 
tion he  has  given  you  oii  that  head. 

Mat.  L.\mb, 
May  30,  1750. 

(In.)      llic  opinv)\t  of  Mr.  Jutiu\  o  i  the  s'dia;  topic. 


To  the  Uiglit  Hon.   the   Lord-  Ciuunii-sioneis  for  Tiade 

ami  FlMiitiitiiius. 
Mv   L(M(ls; 

In  obedience  to  youi'  Lordsbi[)>'  (■i)niiii:ind>^,  signified 
to  WW  b\  Mr.  I'opple,  I  have  cou-ideri'd  :in  act  pa-^scd 
ill  Caniliu.i,  duiiug  the  go\tiiiuient  of  the  LonU  I'ld- 
prietors.  entitletl  '' iin  ait  iclating  to  the  biemiial  and 
otiier  assciulilies.  and  regiiiating  elections  and  members," 
by  which  act.  1  oli'-erve.  that  tbert'i-:!  ji  wcr  ;:i\(ii  to  the 
assembly  of  this  colony  to  nicft  witiiout  tlic  couscut  of 
the  Crown.    The  <'li;n-ti'r  granlcd    to  the  Lords  I'roprie- 


344 


OPINIONS    OP    EMINENT    LAWYERS. 


toi'H  does  not  in  tlio  least  Avarrant  a  ])roceeding  so  de- 
rogatory of  tlie  [lowei-  and  authorit}"  of  the  Crown.  The 
power  orcailini;'  parliaments  is  adnutted  to  Ije  an  inhe- 
rent j)rivik\u'e  in  the  Crown  ;  and  I  believe  this  is  tiie 
first  instance  that  such  an  attempt  has  l)een  nuuU;  to  de- 
prive the  Crown  of  it.  1  think  your  Lordships  should 
show  your  disapprobation  of  a  law,  which  in  so  hiuh  a 
des^ree  encroaches  upon  the  prero.i^ative  of  the  Crown  ; 
but  I  unist  observe  to  your  Lordships,  if  the  facts  are 
true  which  are  stated  in  the  memorial  of  Mi-.  Smyth, 
the  Chief  Justice,  1  think  it  cannot  be  considered  as  an 
act  in  Ibrce.  not  haviuLi;  received  a  due  conlirmation, 
agreeable  to  the  rules  settled  by  the  Lords  Proprietors 
themselves. 

FUAN.    F.\NE. 

April  1,  1 7:57. 

(11.)  'Ill  •  iijiiiilni}  of  ill e  AffoDuij  cikI Sohcltor-<f^  II- 
erill,  JliO'courl  (iinl  Jliiiiidt'jiiC,  on,  •siniil'ir  tapif^,  af  ui- 
conipi  t'  lice. 

To  the  Itiuhl    Hoiioiiible    the  Lords    Commis^ioaers  for 

Trade  and  Plantations, 

M;iyit  please  your  Loi'dships; 

Li  oliedieuee  to  your  Loi(l>liips'  connuands,  siirnificd 
to  as  by  letter  from  Mi'.  Popi)le,  hereunto  amicxed.  we 
have  con.-iidered  the  manner  of  passing  the  act  of  reve- 
nue, .sent  to  Lord  Colepcper,  in  the  year  l(i7'.>.  under  the 
broad  .seal  of  I^ngland 

Wc  have  likewise  pcni.scd  the  e\ti-act  of  (lie  counni-- 
sion  granted  to  the  said  Lord  Colepcper,  bearing  dale 
the  Cth  of  I)eceml)er,  1079,  and  the  extract  of  Colonel 
Ilunter'.s  conimis.sjon,  Itoth  which    have  been  triin>niir- 


dl'  THE   C(iI/)M.\h  COXsTITLrMNS. 


ur 


t("l  t  )  ,is  l»y  Mr.    Popple,  and  In-  tlicni  it  appor.rs  tliat 
liie  iiietlifiii  ".i')\v  i;-.  \    i;i    pasrinL 


•xtroincly  ilifTercnl  I'min  what   it 
By  Loril  ColcpcpiT's    rfiiniiiission.  tln^    Governor   aii( 
il  al  Viri^iiiia,  aiv  to  lnv  hofoiv  Jia'  Kiuu-  inVoiin- 


;Mn;-   lor    \  iriijniia.    i.s 
was  ill  the  year  1070. 


I 


•oiuir 


nn 


n  s 


•il    lu-ro,    .-iicli    l)ills   as    sh:ill    1,(>  proparcl  (or    iiials 
u>\v  law.s  i'lr  that  ^-oloiiy.  in  onK'i'  to  haw  tlu'  sovereiir 
ijiprohatioii  th<M'(-'l  ;  ;;n(l  iftliat  h^'   ohtnincMl.  siicii    bills 

Eii.i^laiid 
11 


ii-f  to  ho  t;ansii!ittril  uiuh'r    the  iiTt-at 


lo  th(^  a'-'somhly  in  ^' 

tai'n<ii;ilU'(l  ho  a~,  on 


ir^U'iiiia.  wlirro  (!i  wiia!    sliall  l)e    so 


((Ml  to  h\-   til 


('  innior  ' 


)art  of  •>uch  as- 


soiiildy)  it  hi'coau-s  a  law  I'rom  thfiKa.rortii.  until  it  shall 
Uy  ix'pcah^d  hy  tha  lilxo  ni.ahoil  and  authorit\  :  hut.  hv 
llic  <'Oii:-titiition  which  scoiiis  nnw  to  Ir  c'<tahlished, 
the  li-enoral  a.ssciiihiy  in  A'iroinia  have  a  lih'eriy  ol' enac- 
ting ainoiv^- th.einselve- smh  laws  as  tiwy  think  eoiiven- 
ieiit  and  the  saiiie  are  to  he  looked  U[)on  as  in  foree  until 


vi.un.   n])on  a   transmission    hitli 


the  sover 

pri'\e  the    s.ime  :    provided 

wiiliin  tliree  nmnth-;  atii-r   llie  act  i>as<es  in  tl 

''ly  at  A'ir-iiiia.  for  the  .■■over 

or  annul  ilio  same. 


ei'.    shall  disai 


lie    Iransinis.-ioa    he    made 


le    a'^sem- 


eiiTu  liere  <>ithoi-  to  eoidirni 


he    I'lnner    of   fhe-e    wars    for  eiiarlin':-   new    1 


IW; 


seems   lo  lie  the   ride  thai    must    'xow^r 
cn^'r.   eouiaa-iiiiiu'  I  hi'  -aa!  art  of  rry 


p.    in    the   pi-escnt 
^>ed 


eiiue    whic'i   iia 


m 


'.I   liiaha-    I  oi-d    <'o] 


I  iteperV  ;;o\iaaim(aa.  and  the 


'>i"'ii'"i  ihat  \\-,w  then  t.ajviai  for  passini^  that  •wt  ap- 
pears to  hediiecti;  opp..-ite  lo  ih(>  said  method  that 
nuiilit  tli.n  to  have  been  pursued  ;  for  the  hill  was  ori,!;-- 
inally  he.nm    here  in  Knirland.    and 


ir'>iii    liin 


i''o  traii> 


mitt 


ed  mider  the  great  seal  ol"  Knuiand   to    ti 


le  general 


assemhly  in  Virginia  ;   there  the  hill  was  not  assented  t 


o 


as    was    transmit 


'II     Ian    sva-;   reinrned   haek  w 


;th  t 


wo 


I 


n 


IMAGE  EVALUATION! 
TEST  TARGET  (MT-3) 


W 


// 


/ 


S" 

,!^\^^ 


y. 


1.0    Ifi^ 


I.I 


11:25    lllll  1.4 


1^ 

22 

1.6 


"/a 


W 


'/a 


^^y  /^ 


Sciences 
Corporation 


13  WIST  MAIN  STIKT 

WHSTiR  N  y     I    )I0 

(  716  1  177  4^01 


% 


« 


o".^  ^fi^ 


346 


OPINIONS    OF  EMINENT    LAWYERS. 


4,1 


provisos  added  thereunto,  which  provisos  being  made 
part  of  the  said  l)ill  ought  regularly  to  have  been  wholly 
approved  of  or  rejected  by  King  Charles  the  Second  ; 
but  neither  one  or  the  other  was  directly  done,  for  the 
bill  with  one  of  the  provisas  was  ratified  and  confirmed 
by  the  said  King,  and  the  other  proviso  was  disallowed 
of  and  annalled.  On  consideration  whereof,  we  are 
humbly  of  opinion  that  the  ratification  and  confirma- 
tion of  the  said  act  with  one  of  the  provisos  only,  did 
become  mill  and  void  by  the  disallowance  of  the  other 
proviso. 

If  any  part  of  her  present  Majesty's  revenue  subsists 
by  the  authority  of  this  act  o-.ily,  we  conceive  it  may 
be  for  Her  Majesty's  s'jrvice  to  have  a  new  bill  pass  in 
the  general  asseml)ly  at  Virginia  and  be  transmitted 
hither  for  Iler  Majesty's  approbatioii,  pursuant  to  the 
method  prescri])ed  in  Colonel  Hunter's  commission, 
which  will  take  away  all  doubts  concerning  the  collect- 
ing and  payment  of  the  said  reveuue. 


Dec.  23,  17(»7. 


Sim.  Hah(()i  rt. 

Jas.   Mol  NTACiTK. 


(12.)  The  oit'minn  of  the  Att'^ritf  tj-di  lurti!  N(>vth<  >i, 
that iuin  nhoiiJti }>t  takni  fi>r  tlic  rtijtiJur  tr<in-iinvis'lo)i,  in 
ort//r  to  till  ( o/i-viff,-r(f(ioii  of'  f/w  Qik'cii's  ( 'ouncil-s. 

To    the    Right   Honoralile    the  I.ords  ( iDiniiiisHoncrs  of 

Trade  and  I'l.mtations. 

Miiy  it  pli"as<>  your  l.Htrdsliips. 

In  obedience  to  yii"  l  nrdships'  order  of  reCerence, 
signified  to  me  bv  Mr.  I'oppie,  by  his  letter  dated  tjie 
14th  day  ol'  February  last,    I  hiive   ptMiiscd   iind  consid- 


11 


.it 


OP  THE  COLONIAL    COXSTlTCTIONS.  347 

ered  of  tho  inclnsed  act,  passed  at  Barbadoes  the  8th  of 
August,   1706,  entitled  "an  act  for   the   better   enabling 
the  executors  of  Cln istopher   Estwick  Esq.,  to  pay  the 
debts  of  the  said  Christopher  Estwick,"  in  which  act  it 
IS  rected,  that  Richard  Estwick,  gentleman,  having  two 
sons,  Richard  a    1  Christopher,  and  two  daughters,  Eli- 
zabeth and  Anne,  deWsed  one  huif  of  his  real  estate   to 
Richard  and  the  heirs   of  his  body,  with  cross  remaind- 
ers entad  among  them,  charged  with  the  payment  of  his 
legacies,    remaindoi.   to  his  two  daughters   entail    re- 
mainder :,.  fee  to  his  widow.     That  Richard,  the  eldest 
^«)n,    dying  without  issue,   the    whole  est^ite   came    to 
Christopher,   and    that  he    having  made  his  will   and 
ihereby  made  some  provision  for   his  only  son  and  two 
daughters,  and  made  several  executors,  and  not  having 
i"llv  .l.scd.arged  his  father's    legacies,  died  encumbered 
with  debts  to  the  amount  of  six  thou.sand  pounds;   that 
the  said  Christopher  was  also  seised  of  several  negroes 
-rhis  own  purchase  ;  that  the  creditors  hadc<.rMmonced 
aMdtl,reaten..d  suits  against    his  executors  for  recovery 
"f  then-  debts,   whe.vby  his  personal  estate  and  negroes 
were  n,    danger  of  being   wholly  extented    and  sold  to 
sitisjythem;  and  if  tlu- negro-s  are  taken  uff   from  the 
I'lautation  whereof  he  was  seised  entail,   the  plantation 
would  Inrouu.  ,.f  little  value  to  the  son,  which  could  not 
Ih-    i)reveMte.i    by   any    way  but  by  applying  the  whole 
prolits  ..f  .he  estate  to  di.seharge  the  encumbrances,  and 
ly  allowing  tJie  creditors  interest  in    the  .nean  while  at 
teupereentand    that    the  exe.  ut..,s  did    e.-n-eive    that 
tiiis  way  the  estat,    would  in  all  pn.babijitv  be  preserv- 
•■'•  '■"•"••■  '""'  '•'■'•l.'are.l  by  the  time  the  sun  should  come 
"t^igr  ;    au.ltheivfnreit    is  .uriete.l    tllMf   I  Ke  executor  be 
»-iupo\ve-ed  to  apply  the  profits  of  the  whole  estate  Urn- 


.r 


^mi  I L 


,  %  ■ 


;U8 


OPINIONS  OF   EMINENT  LAWYERS. 


ards  payinont  of  debts  iU)de;ioinnbraiice.s,  and  to  ullow 
the  creditor^  ten  per  cent,  interest  till  paid  off:  whieh 
act,  I  am  ul'opinion,  is  nnreasunable.  in  regard  thereby 
the  entailed  estate,  whivdi  d- -tended  to  the  infaid,  and 
wa.s  not  <,'hai-<i-eablo  uilh  (h'bt--  of  his  liither,  i.-'  (  ar";e<l 
with  the  same,  and  also  ten  pei  ceui.  interest,  and  no 
provision  whatsoever  is  reser\-ed  Ibi-  the  sou  durinj^- the 
time  the  debts  are  elearinsr. 

1  beg  leave  to  take  notiee  on  this  oeeasion  that  the 
Governors  of  the  plai\tnt:on:5  do  not  obscive  their  in- 
.struetions  in  tran-^^ndttinjr  the  kws  pa.s.^ed  in  the  planta- 
tions witiiin  the  tim*' preseribed  lor  them  to  transnnt 
the  sank-.  It  a[)peariiii>-  in  this  partieular  ea.se  that  this 
aet  was  passed  the  (Sth  of  Au<i;nst  17()b,andnot  received 
b\  your  L  .rdsliips  till  the  12th  of  February  ITU  ;  and 
therefore  I  sul»nut  it  to  your  Lordships'  eonsideiation, 
whether  the  CJoveniois  of  plantation.s  are  not  to  be  i)ut 
in  mind  of  takin.u-  eare  that  laws  pa.ssed,  in  Her  Majestv's 
plantations,  be  transndtted  for  Her  ^•aJesty■s  apjiroba- 
tion  in  due  time. 

EUW.  NoKTHEV. 

April  2o.  1712. 


(I-"),)    7  It,  oj>i/un/i  (If'  thr  .stiiiK  hlirif,  r  (III  tin    (^if<'/i's- 

poll',  r   nj    r:i),llin,l     tin    ,l:(<(,j'th      .\/.  I  ll/ll/ lu/   .  I  SM  /nf'h/. 

To  the  lliiihl    Ilonoi.dll.',   the  l^ords    Coumiisdoners   (i)r 

'I'radi'  and  I'laut  iliniis. 

May  II  phase  your  Lordships; 

In  obi'diciici-  to  \uu'-  liord>ii;,»s'  coiuiuauds.  sijiuilied 
lo  me  by  M,.  l'..|i[i|.-  jr.,  1  have  considered  .if  the  ,pies- 
tions  uientioueii  in  the  aruu'xed  letter'  ;  and  as  \n  the 
hr-t  of  the:u,  vi/ :  uhelher  Her  .Majesty  do  not  siuni- 
ly  her  pliM^iu'e  uoiiiii  «'i^htei  ,i  month>,  the  suspe>idin;f 


OF  THE  COLONIAL  C 'J.NSTIT'.TIONS.  349 

a.'t  do  then  expire,  or  whether  the  .s-une  do  reiuain  hi 
lorco  after  the  eiohteen  months,  nntil  Her  Majesty's 
pleasure  he  signified  ;  I  amof  thr  opiaion.  ti,e  suspend- 
ing IS  to  continue  ni  force  for  eighteen  months  unless 
sooner  determined  hy  Her  Majesty's  ,.h,,,.nre  ;  and  the 
clause  that  no  prosecution  sliall  he  until  the  expiration 
of  oighteen  months  or  until  Her  Majestv  shall  declare 
her  pleasure,  I  aiink,  can  have  no  other  construction- 
and  theretore  in  all  events^  the  'act  is  .,  ,h,(e-. -nh.e  at 
the  end  of  eighteen  months  without  HcrMi.icstv's  pleas- 
ure declared,  and  sooner  if  she  shall  so  pU,is(>  to  declare  : 
and  as  to  the  second  .juestion,  vi/  :  wliether  in  case  Iler 
Majesty  do  signify  her  pleasure  for  t!.,,.  eoi.tiuuance  of 
thissuspendingactfora  certain  time  after  the  expira- 
tion .  ''the  eighteen  months,  or  until  Her  Majestv  s  fur- 
ther j.leasure,  the  sai.l  act  will  remaiu  in  loire  accord- 
ingly, 1  am  of  opinion,  all  the  power  reserved  to  Her 
Majesty  hy  the  act  is  to  determine  the  a,  t  within  ci-ht- 
tcen  m.mths;  hut  Her  Majesty  cainml  Wn  her  .leclara- 
tion    continue    longer     the    -iispcnH.:).,    ,,f    ihe    f.-iuie- 


ac 


Decemher  It),  1700. 


r-i;..      Nol'.TIIEV. 


(11.)  'J Ju  opinio,,  ofth-.saii,rh,,v,i.ro.:th<  ,i„f,tnt^.^ 
<>:  an  <.■<■(  of  the  JamairaA.^.Htnl>h/,  „..■  i/,r  .„s!^f, id  with 
tii<    i^iii  i  I,  '.s>  pni'o<j(itl re. 

T«.  (he   Right   H.horahle   the    F.-nls   Cmnuissiu,,     s  for 

'iVadc  :ind  Plantations. 

.\hiy  it  please  your  Lordships  : 

In"l,e,lience  to  your  l.ordvhips'  ...linu^iiKU,  signiCed 
''  "'^"  ';>  Mr.  I'opple,  I  iiav.-  .•.,„  id.., vd  .,r;,u  net  pas.sed 
'H  tiic  i.vjand  ..f  Jamaica,  entitled    an  act    to  i.n.vide  an 


OPINIONS  OF  EMINENT  LAWYERS. 

additional  subsistence  ff,r  Her  Majesty's  offlcers  and 
soldierti,  and  for  other  uses ;"  on  which  hiw  I  observe, 
that  the  parts  of  it  which  relate  to  quarterinfij  and  sub- 
sisting Her  Majest\  's  forces  are  temporary,  and  are  t  c 
expire  on  the  1st  of  Noven^.ber  next  ;  but  other  parts  of 
the  act  which,  I  apprehend,  intrench  on  Her  Majesty's 
prerogative,  are  perpetual. 

As  to  the  provisions  for  subsisting  the  soldiei.<  by  de- 
ficiencies, I  am  not  able  to  judge.  Avhether  it  be  a  suffi- 
cient provision  or  not,  and  being  only  temporary,  if  the 
same  be  found  by  the  officers  of  Her  Majesty's  forces  to 
be  insufficient,  it  may  be  rectified  when  another  bill 
shall  pass  :  however,  the  clause  in  the  act  that  no  per- 
son have  any  share  of  the  money  to  he  raised  by  that 
act,  that  marries  any  inhabitant  of  that  island,  i.s  un- 
kind. 

And  as  to  the  other  parts  of  the  act  which  are  perpet- 
ual, viz :  the  clause  tliat  disables  any  officer  or  soldier 
(the  Governor  exc.pted)  to  use,  <'xcrci.<e,  or  enjoy  any 
civil  commission,  power,  place,  or  authority,  or  in  the 
militia  in  that  i.sland ;  and  the  claus.>  that  lays  a  penalty 
on  all  persons  not  being  native  born  ■subjects  of  England, 
Ireland,  o  the  plantations  in  America,  that  shall  use, 
exercise,  t.r  enjoy  any  conuMissioii,  civil  or  military, 
(except  in  Her  Majesty's  forces  in  that  island  under  her 
pay):  I  am  of  opinion,  they  are  l)oth  against  Her  Maj- 
esty's prerogative,  and  the  latter  carries  the  disability 
further  than  what  is  done  hy  the  act  oftlie  7th  William, 
which  is  restrained  to  thi'  courts  oflawandthe  treasury, 
a. id  thnt  matter  is  not  conct'rufd  in  the  title  ol' the  net, 
and  tlierefore  tliat  ttiis    aet  is  not  fit  to  lie  eonliniied. 

K:nv.  N(U<rHKV. 

.lulv  i>th.  170(1. 


OF  THE  COLONIAL  CONSTITUTIONS. 


861 


Sixth.  ; 

Of  the  various  modifications  of  the  con.'-''tut«d  As- 
semblj'fi  iiccustomed  powers. 

(1.)  The  opinion  of  the  Attorney-General  Bnymond 
that  an  act  of  A-smnhly  has  the  same  effect  imhe  (Ma- 
ny as  an  act  of  parliament  has  in  the  mother  country. 

To  the    Right  Honorable  the  Lords  Coumiissioners   of 
Trade  and  Plantations. 
In  obedience  to  your  Lord.ship.s'   commands,  .signified 
to  me  by  Mr.  Popple's  letter,  i^earing  date  the   24th    of 
July  la,st,  I  have  considered  of  an  act  which  passed  in 
Barbadoes  the  1st   of  August  1712,  entitled  "an  act  to 
enable  and   empower  the   surviving  acting  executor  of 
Johanna  Parris,  widow,  deceased,   to  sell  and  dispo.se  of 
certain  lands,  buildings,  and  negro-slaves, devi.sed  by  the 
last  will   and  testament  of  the    said  Johanna  Parri.'*,  to, 
and  for  the  use,  and  purposes  therein  mentioned  ;"  and 
though  this  act  is  not  drawn  as   such    acts  are   usually 
drawn  in  England,  such   acts   here   usually  vesting  the 
lands  in  the  person   who    is  to  sell,  and   this  act  only 
giving  the  party  a  power  .so  to  do  ;  and  though  the  sale 
is  to  made  by  /rwro/vW,  y<'t  I  take  it,  it  will  be  suffi- 
cient in  an  act  of  assembly,  which  is  of  the  same  effect 
there  as  an  act  of  parliauunt  here  ;  therefore  I  have  no 
objection   in  point   of  law  against  Jler    Majesty's    con- 
lirining  the  said  act,  if  He.-  Majesty  sliall  graciously  be 
pleased  so  to  do. 

l?oRT.  Ravmond. 
August  1!),  ]7i;j. 


352 


OPINIONS  OF  EMINENT  LAWYERS. 


*"  -' 


0 


cm 


(2.)    Thr  (ipiii/oii  of  till'  Attorney  ami  /tol-icifor-^reii- 
h  Mnnwj  (tnJ  IJ  >i;if,  «».    tlie   vsital  j)?%mle(/es  of  the 


Ja 


llurr 


I  A-^-11'in'ili/. 


To  tlu'  iv;j,lit  Hull,  the  Lords  Commissioners  lor  Trade 

and   I'l;uu:i(i(iiis. 


Mv  L 


iros 


Piiisuiiut  to  your  Lordships' desire,  signified  to  us  In- 
Mr.  Pownall  in  his  k'tter  of  the  i5th  inst.,  setting  forth 
that  \()Ui'  [v)i(iships  lia\;ng  hitely  received  a  hitler  from 
Mr.  Knovvk's.  (Jovernor  oi'  the  island  of  Jamtiica,  in 
which  he  ac(iiiaints  your  Lordships  with  his  having 
dissolved  the  a-scml)ly  tiiere  for  calling  in  question  His 
Maiesiy"s  ri-iht  of  issuing  writs  for  i  lecting  members  to 


it  in  the  a-^si-m 


aiM 


l)ly   without  waiting  for  a   message  first 
1  iiK'loiiriLi' to  us  an  extract  of   the  said 


from  th  '  ii 

letter,  together  wiMi  a  copy  of  tiie  re-olution  of  the  as- 
,seml)ly,  upon  wh'cli  that  dissolution  wa«  foimded, (which 
extr.c't  and  ci'py  are  herewith  returned.)  and  desiring 
our  opinion  whctliei'  the  assem))ly  were  wai-ranted  lu 
coming  to  that  re-^olution,  and  whether  it  he  con-istcnt 
with  His  .^h^jest\'s  rights  and  prerogatixi'  :  Ave  have 
cou-id 'I'c  i  iiicreof.  and  do  not  think  our^i'lves  sufti- 
cientlv  infoi'med  to  give  .•ni  opinion  upon  the  (piestion 
so  frcnei'all\-  slated.  Itcc.in-  it  depends  upon  the  consti- 
tution of  ilic  a-<em!il\  of  Jamai'-a  and  the  usage, 
whetlier    wliii'-t    tiie   asssmlth    is    sittinu:   all   vacancies 


should  (irst 


le  si 


unified  hv  themselves  totlie  (lovcrnoi' 


and  yet    the    case    nni.-t    fre<pi(Mitly    \\a\o  haj^pencd. 


Noll 


ini!.;'  I- 


iran-unltrd   to    nsrelati\eto    the  eartirulMr 


const  itut  ion  oi 


i-age  in  damaifa  upon  this  point  ;  and 
there  aro  no  pintles  lo  whom  we  could  send  for  infor- 
m.ition. 


OF  THE  COLONIAL  COXSTITUTIONS. 


353 


What  thii  asstMnbly  claims  seems  analagou.s  to  the 
law  and  pi-actioe  here  ;  hut  it  does  not  from  thence  nec- 
essarily follow,  that  it  is,  or  ought  to  he,  tlie  law  there  ; 
thai- must  depend  upon  their  own  constituti.m  and  usage, 
which,  without  lurther  light,  we  cannot  venture  to 
give  an  opinicm  upon. 

W.  Ml'rrav. 
April  29,  l7->-  KicH.  Lloyd. 

(3.)  7  /tc  opinion  af  the  Attorney  avd  ^olieitor-Gene- 
>-(:f,  YovW'  and  T(df>ot,  on  the  >jenem( policy  applicabh 
to    thA  saihc  A-send>J>j. 

To  the  Right  Honorable  the  Lords  Commissioners  for 

Trade  and  Plt.'itii^ions. 

M'.y  it  phrase  your  Lordships  ; 

In  ohedience  to    -our   Lordships'   commands  signified 
by    Mr.  Popple,  referring  to   us  two   acts  of  assembly 
passed  in  Jamaica    in   April   1728,  entitled -'-an  act  for 
granting  a  revenue  to  His  Majesiy,  lii;;    heirs  and   suc- 
cessors, for  the  support  of  the  government  of  this  island 
a.idfoi  .eviving  and  perpetuating    the  acts   and   laws 
thereof;"    "an  act  to  oblige   the    several    inhabitants  of 
this  island  to  provide  themselves  with  a  snfticient  num- 
ber of  white  people,  o/ pay    certain   sums  of  money  in 
case  they  shall  be    deficient,  and  applying  tlie  same  to 
several  uses,  fui-  repairing  the  wall  of  Port   l^'^■■11  :"  for 
"lu- opini(.n  thereupon   in    point  of  law,   and    transmit- 
ting the  draught  ofa  bill  for  raisinga  revemie  in  Januii- 
cn.  which  was  formerly  prepared  here,  to  be  passed  into 
ii  law  in  that  isjaiid  ;  i;^  likewisea  c(>])y  of  the  instruc- 
tions given  to  Major-General  Hunter  for   his  direction  in 
this  uiatter:  we  have  considered  the  said  acts,  together 

46 


354 


OPINIONS  OF  EMINENT  LAWYERS. 


i  3  »»4 


with  the  said  draught,  and  find  sevral  variances  therein; 
but  no  question  in  point  of  law  appears  to  arise  upon 
any  of  those  variances,  except  in  the  particulars  follow- 
ing, viz  ; 

Ist.  B}-  the  draught  it  is  provided,  that  where  goods 
or  merchandizes  should  be  landed  without  the  presence 
of  the  proper  officer,  or  paying  or  securing  the  duties, 
the  same  should  be  forfeited,  and  should,  and  might  be, 
seized  by  tlie  receiver-general  or  any  person  authorized 
by  him. 

By  virtue  of  whicli  clause,  when  passed  into  a  law,  if 
any  goods  should  be  landed  contrary  thereto,  an  infor- 
mation, by  \vi\\  o(  (fcrc-nrriuif,  mighi;  be  maintained  for 
the  value  thereof  without  an  actual  seizure  of  such 
goods. 

By  the  act  sent  over  it  is  provided,  that  goods  so  land- 
ed, being  seized  by  the  receiver-general,  or  any  person 
authorized  by  him,  shall  be  forfeited  ;  in  consequence  of 
which  alteration  no  forfeiture  can  arise  without  iin  actu- 
al seizure  of  the  goods,  which  is  often  impracticable  in 
cases  of  clandestine  importations  ;  and  withv^ut  a  forfeit- 
ure, no  (/cv':nerii/U  can  be  brought  for  the  value  of  the 
goods. 

2d.  In  the  draught  a  clause  is  inserted,  obliging  the 
receiver-general  of  the  island  to  deliver  his  accounts 
within  a  limited  time  Lo  the  auditor  general  of  the  plan- 
tations, to  be  passed  l)y  him  and  transmitted  to  the  lords 
of  the  treasury  of  Great  Britain  ;  and  the  doing  of  this 
is  made  part  of  the  condition  of  his  bond,  which,  by  the 
draught  he  i.-.-  directed  to  give. 

In  the  act  sent  over  lx)th  these  provisions  are  omitted 
and  instead  thereof  a  proviso  is  inserted  that  nothing  in 
that  act  shall    prevent   the    receiver-general's    account 


OP  THE  COLONIAL  CONSTITUTIONS. 


355 


with  the  !iiiditor-<;eneral  of  the  plantations  or  such  oth- 
er person  in  the  kindom  of  Great  Britain  as  His  Mi-jes- 
ty,  his  heirs,  or  successors,  shall  think  fit  to  appoint  for 
tliat  purpose. 

Upon  which  we  beg  leave  to  o})serve,  that  by  the  act 
thus  altered  no  new  obligation  is  laid  upon  the  receiver- 
general  toaccouut  l)efore  the  auditor  of  th-  plantations, 
but  his  being  obliged,  or  not  obliged,  to  render  .-ich  ac- 
count, will  depend  upon  what  was  the  duty  of  his  office 
before  this  act  passed ;  of  which  we  can  form  no  judg- 
ment, the  constitution  or  appointment  of  that  officer  not 
having  been  laid  before  us. 

3d.  By  the  draught  it  is  enacted,  that  the  act  to  be 
passed  in  pursuance  of  that  draught,  and  all  other  acts 
of  assembly,  formerly  enacted  and  made  to  be  of  equal 
continuance  and  to  expire  together  with  the  revenue 
act  therein  menticmed,  and  not  thereby  altered  or  re- 
pealed, should  be  perpetual  ;  and  als„,  all  such  laws  and 
statutes  of  England  as  by  usage  and  practice  had  been 
accepted  and  received  as  laws  in  Jamaica,  sli...il<l  be,  and 
continue,  laws  of  Jamaica. 

By  the  act  transn.itted  it  is  enacted,  that- all  the  acts 
and  laws  of  Jamaica  which  determined  on  the  Ist  day  of 
October  1724,  and  not  thereby,  or  by  any  former  aJt  of 
the  (Jovernor.  council,  and  as.-embly,  in  force  at  the  time 
of  passing  the  said  act,  now  transmitted,  altered,  or  re- 
pealed, shall  I)e  revived  and  made  perpetual  ;  and  also 
all  such  laws  and  statutes  of  England,  as  hnve  been  at 
any  time  esteemed,  introduced,  used,  accepted,  or  re- 
••eived  as  laws  in  Jamaica,  shall  be,  and  continue,  laws 
of  Jamaica  for  ever. 

The  first  branchof both  tlic^e  clauses  relates  toact^  of 
assembly  passed  in   Jamaica,   and  though  they  vary  in 


i  - 


356 


OPINIONS  OK  EMINENT  LAWYERS. 


■  i 

i 

m 


il 


'« ^ 


expression,  yet  we  apprehend  there  is  not  any  material 
difl'erence  in  the  senile. 

The  latter  branch  relate.^  to  such  parts  of  th(i  laws  of 
England  as  are  intended  to  ])e  eontiuued  laws  in  Jamai- 
ca :  and  in  this,  the  act  sent  over  materially  differs 
from  the  dranght,  by  leaving  ont  tae  words,  as  by  usage 
and  practice,  have  been  accepted  tuul  received  as  laws 
in  Jamaica,  and  instead  thereof,  inserting,  as  have  been 
at  any  time  esteemed,  introduced,  used,  accepted,  or  re- 
ceived as  laws  in  this  island,  which  last  descripton  is  so 
loose  and  uncertain  that  it  will  be  very  difficult  to 
know  what  laws  of  Enjjrland  are  therebv  made  laws  of 
Jamaica,  and  what  are  not  ;  and  seems,  therefore,  to  l)e 
liable  to  the  same  inconveniences  as  former  clauses  of 
the  like  nature  which  have  been  rejected. 

Upon  the  second  act  no  fpiostion  of  law  arises,  and  it 
will  expire  upon  the  29th  day  of  this  month. 

P.  YORKE. 

March  25,  1729.  C.  T.\lbot. 

(4.)  1  hr  opinio))  of  J//'.  V<ii)e.  ontho  (j^iu'iul poTivy 
of  il)e  mme  AssonhI)f. 

To  the  Right    Honorable    the   Lords    (^onnnissioners  of 
Trade  and  Plantations. 
IMy  Lords  ; 

In  obedience  to  your  Lordships'  commands,  I  have 
considered  the  act  passed  in  Jamaica,  for  foreclosing 
Smith,  his  heirs,  executor^^,  and  assigns,  from  the  erpiity 
of  redemption  of  a  certain  plantation,  called  Pero  Plan- 
tation, if  the  mortgnge  money  bt  not  paid  to  Mr. 
King  and  his  wife,  before  the  oUtli  of  May,  1725;  and 
the  papers  to  me  referred  in  relation  to  that   affair.      I 


OK    THE    COLONIAL    CONSTITUTIONS. 


•X 


;ipprelieiul,  1  need  not  trouljlc  youi-  Lonl.ships  with  a 
■itate  of  the  case,  nn  it  stands  upon  the  act,  it  being  so 
I'lilly  kiiDWii    to   \()u  idrc;\(h-. 

1  thinis".  in  o-cnerai.  tliat  r;uch  laws  would  be  greatly 
dangci'ous.  and  that  the  legislature  should  raielj  inter- 
lere  in  nutters  oi' private  right  without  the  greatest  ne- 
cessity :  l)ut  1  cannot  se>:-  any  great  inconvenience  ni 
ihis  case,  but  rather  a  necessity,  indeed,  tor  the  passing 
tiiis  law,  because  of  the  act  which  Mr.  ^Vest  mentions 
in  his  report,  that  obliges  all  owners  of  laud  in  thi>,;part 
of  the  island,  to  settle  their  jJan tilt  ions  within  two 
years,  under  the  forfeiture  of  their  vcsoective  hiterests 
to  the  King. 

But  what  I  chielly  ground  my  ojuuion  upon,  is  the 
luemorial  itself  of  Gordons  which  containing  only  gene- 
ral allegations  and  unsupported  by  any  proof  or  evi- 
dence that  I  can  taxe  notice  of  will  Ije  in  this  caseagood 
Ibudation  for  conlirming  this  act.  For  the  memorial 
says,  J()S->  Sir  Thomas  Lynch  sold  this  plantation  to 
Pope  and  Harbin,  which  wa>;  the  sr.me  vear.  the  act 
says.  Smitli  made  the  reconveyance  of  tlie-^e  lands  to  Sir 
Tiiomas  Lynch.  It  likewise  says,  that  the  greatest  part 
of  the  purchase  mcmey  was  paid  by  Pope  and  Harbin 
lo  L.ady  Cotton  ;  but  I  beg  leave  to  ob.serve  that  it  does 
not  set  luiiii  how  much,  nor  at  what  time  this  was  done. 
The  memorial  likewi.se  says,  that  Pop."  conveyed  a  moi- 
<.'ty  of  his  share  to  Peers,  but  doth  not  say  when  ;  and 
that  h."  mortgaged  the  other  part,  but  at  what  time,  or 
whether  it  was  to  Sir  Thomas  Lynch  or  Lady  Cotton, 
doth  nowhere  appear  ;  and  yet  tins  mortgage  is  made 
the  title  to  Lady  Cotton,  to  enter  and  take  the  profits 
all  thi:;  tiiiio. 

It  seom;i  a  little    odd    she  .should  have  lx;en  sulVered 


m 


358 


OPIMO.NS  OF  EMINENT  I.AVVVEBS. 


to  lUiiintixin  tliis  disseisin  and  usurpation  on  IlaiTMU  and 
his  heirs  and  the  other  inen»orialists,  and  nothinj^  be 
done  in  this  lenj^th  oftinu  except  a  hill  lately  brought 
and  that  not  prosecuted. 

So  that  upon  coni[)ariug  the  act  and  ineniorial  togeth- 
er, there  doth  not  seem  to  be  a  sulHcieut  title  set  up.  or 
allegations  proved,  to  prevent  tlu-  c(  •iinnation  of  this 
hiw  ;  tor  the  a<'t  extends  to  fore « lose  only  the  repre- 
sentatives and  a-*sigus  of  Smith,  no  other  right  is  eon- 
eluded,  and  the  niemorialisfs  right  is  dei-ived  wholiv 
from  Sir  Thomas  Lynch,  and  is  no  ways  dependent  on 
that  of  Suiith  ;  and  1  take  it  to  be  a  settled  rule  in  the 
construction  of  acts  of  parliament,  that  where  lnud  is 
even  giv(>n  to  the  King,  or  where  a  comcyance  by  a 
statute  is  made  go(Ki  ag;'.inst  a  particular  jxrsoii,  all 
other  men's  rights  are  .sived,  of  course,  without  an\- 
provis,). 

The  memorialists,  after  the  pa.ssing  this  a(  t,  may  lie 
at  libertv  to  controvert  Mr.  King's  title;  but  tln-re  mm- 
be  very  great  danger,  at  least  great  iiiconveuii'Uie,  in 
not  having  this  plantation  settled,  1  think  this  'aw, 
which  is  to  further  that  end,  may  lie  ver\  .-al'eh  |ii--ii!: 
and  that  this  ciise  is  out  of  the  coiumnu  n/asou  ot  (he 
legislatures'  leaving  the  decisiDu-  of  pioperty  to  the  le- 
gal course  of  justice. 

Mr.  West,  ii'  his  report  upon  this  matter,  i-^  <if  opinion 
that  all  facts  allegiMJ  in  the  colony  bills  niii^t  '>,>  taken 
to  be  true.  This  rule  ma\  generally  be  tru.',  but  1 
think  in  adve.-sai-y  l.dN  cl' Ibis  naliu'e,  uhidi  are  onlv 
the  |);.rt\  s  own  slr.U  of  the  ca.M',  fiiis  mlc  houlil  not  lie 
extended  bn-tiier  than  tin  particular  facts  nirni  loncd  , 
Init  I  apprehend,  if  ought  not  to  be  pic^nmcd  ibat  eve- 
ry thing  i,~  full\    slated  ami  that    all    l'a<'ts    and    cucnin- 


OF  THE  COLONIAL  CONSTITUTIONS. 


359 


!  n 


stances  are  disclosed  that  are  necessary  to  give  a  per- 
fect insight  ii.^o  the  merits  of  the  hill  ;  for  though  the 
facts  alleged  may  he  true,  yet  oth-er  facts  my  he  sunk 
which  may  alter  the  case  and  defeat  the  allegations  of 
tliehill;  neither  do  I  think  it  safe  to  argue  from  the 
analogy  and  reason  of  penal  laws  in  the  plantatioins  to 
altiil  of  this  kind,  hecause  rules  of  state  and  policy  arc 
no  proper  measure  to  adjust  private  property.  But  for 
the  reasons  I  Iiiive  before  oflered,  I  can  sec  no  incon- 
venience from  passing  tiiis  act  ;  it  is  doing  no  more 
thanacourt  ofe(piity  woul<l  do  after  such  a  length  of 
time  ;  an<l  if  the  memorialists  are  purcha.sers  under 
Sir  Thomas  Lynch,  they  are  not  aftected  by  this  hill, 
but  have  a  proper  remedy  at  law. 

Fh.vn.  Fane. 

M.u-ch  H,  172')  r,. 


(  I  I.)    7'/>    npiuiini  of  the  Atf<,-i)i>>io,i<lSoJi,-ifor-(i'  n- 
raJ.   H,id  r  nwl  Sfnn,,/-,  on  art,  of  North  Carn/i/ia,  that 
iren  tiof  lVnul'10,1  dtha  on  ih<    (  'norn  i,v  jK'oplr. 

Tn  the  Right    Honorable    the  Lords    Commissioners  for 

Tiadeand  IMant^itions. 

May  it  please  yoin-  liordships; 

111  nlH-diciicc  to  yoiu-  Lordships'  commands,  sigtiilied 
In  us  by  Mr.  I'oppic,  in  his  Ictt.i  of  the  17th  instant, 
tiaii^mittiiig  to  us  the  aiiiie.ved  copies  of  two  nets  of 
North  Carolina  and  the  aiiMe\e<'c  answer  to  certain 
</iitH-!(.t\  we  have  considered  the  same,  and  likewise  an 
'  \liit.  t  In. hi  (lie  general  <'ousti(utioii.  No  S.'?,  stated 
111  a  liiic  case  iVom  your  Lordshi|)s,  wherein  it  is  ordered 
lli:il  No  act  or  order  of  parliament  shall  be  of  any 
lorce,  unless  it  be  ratified   in   open  parlimeuf  during  tho 


300 


OI'lMilNS   0\--  K.MINR.Nl'   [AWVKl.'S. 


sumo  .-^rsyioi),  ]>y  tlii'  ])al!itine  or  his  doputv  am',  threo 
luoro  nf  the  Lords  Propi'it'tois  aiid  tlu'ir  drpiitios.  and 
then  n;>t  to  continiii'  Iniiier  m;  Ibrcc  but  till  tlic  next 
bionniel  parliaiiiiMit,  nnli'ss  in  the  mean  tiuio  it  lio  rati- 
licd  Mud'-r  llio  hands  and  seals  of  th"  palatino  hiniselt' 
and  tln-cc  nioiT  of  the  lords  proprietors  tlieniselvcs.  and 
hy  their  order  pnhli-^hed  at  the  next  biennial  parlia- 
ment :''  ami  upon  the  whole  cireuuistauees  of  the  ease 
relatinii' to  these  aids,  we  ai-e  of  opinion,  that  !hey  are 
not  bindin:'  rither  on  the  (Irowiioi-  jieople, 

I).    1{U>K!!. 


March,  IT'iTS. 


,1.  Stka.m.e. 


nt  III  1/  liii  till   lldlxiil  IS  A'^xi  iiifil ij.  <ni'l  tin   iihiiiiy. 

To  till'  i{i<:]it   ib.n.   the   l.ord>  ('onnni>>ioiiers  ol'   'I'rade 

and  IMaulatJori  . 
My    Lonb; 

111  (I'ledieiiee  to  youi'  l.ord-'hip":'  e.)iiimaiid' ,  I  have 
pei'U-^ed  and  coii-ideied  an  aid  parsed  in  the  island  of 
Barbadoe^,  iMititled  ''.Vn  aid  for  la\  inLi'  an  impi»ition  or 
(bit\  '111  wine-oi-  rtlier  >tronL;'  liipiors  imported  nito  this 
island,  in  niilj'r  to  rai-e  money  to  carry  on  tlie  fortitica- 
tion-i.  i or  pa\  iiicnt  of-uch  pcrsoii'^  .is  arc  or  >!i.dl  lie  eiii- 
ploved  at  th<'  piil)lic  (diar^e,  and  ti'i'  >uch  otln;'  ]»uMic 
uses  ;,>  ,111'  licrcMi  cuntalucd  In  rrjalion    In    whicli  I 

would  I'l'ir   lca\i'  tol:i\    -,.|iic    I'lwci  \  ;itiMn-    licti'ic     \  mir 
liord^hipv 

I  take  it  to  be  a  i;ciicial  inlc  in  the  \N  e^(  Indies,  that 
all  ta\e-^or  impositions  u  hatsoe\'er.  to  be  n^ed  I'roiii  or 
laid  upon  the  Milijects,  ou^'ht  to  be  eicicted  in  the  par- 
ticular !»iil>  ii\  wliicii  th(>\   ar.-  ci-eati-d,  li\    wa\  of  iriant 


P 


p 


"F  THE  COLONIAL    I  O.NSTITUTIOSS.  Z61 

IJi«  .VI».iostv,  l,i»  l,,i,,,,„,|  ,„.,<,„„^,      ,,,,,    ^ 

.0,0  ,s  „„  ,„e„.i„„  „.|,a..,evo,.  „„.,,.„„■  u,e  frown   ,"' 
'e,ea,,,vg™,t„f,,,,,,h,,,,,„i,:    ie   i»  only  'Jd 

",.«!,oK„„,„,l,on    ,,.„n,i„„,„„,    ,„•  ,1,.    Ml,     ^, 

\vitu  the  colloctK.ii  or  rcccinf  nf  il,,.  .  .> 

M(.Li[)toi   tlio  luonov.       For    fl,p 

f'";"":,r^^- ly  .i,o„,..iv..  ,.ko  „|,„n  ii,,,„,  i„ ," 

'l""-"'-"'l"-i"<v;.„,|  in  ..,,,. ,   vaoanov  .l,„ni.l 

.,oi."wo.;ol    .|>poi,„i„s    i,or»,n.    to  ollioia,,.    in    ,|,eir 

<."vor„o,.,n„„o„i„.,..,ffi.,.  M,i»   ,,„,,, oJi'nk  „„,,,„ 

:'•  ":  """'  r" "">  ''   "•■..'■■■»l  --o.,,!,!,-  ,o    „,oot     ror 

,""'"","""""""   '"■"    '.o-.n-o,-  :,n,l    ,.,„n,,„,,IK.,— 

'":""■""■""" •    I"-- li..,«   i»    .„,„iH,..,„  „i,„ 

'l'-K..,r     I.,o,o«,„ivoan,lin.,„„„,i„„.,   ,„  „,,    ,;„,„,,. 

"";■   '  ' ""  ".'.'  '•"li.oly  lo  vo„r   r,o,-,|,l,i|„ 

V.i„l,...,„l„|,.„i||,„.,|,„|,|,,,,^,„l,,,  ^ 

"':■  ",";""■>  '■'"•'" •■  .-i-i  In  ,1 ,,  i.  ,o ,,.: 

:;:"",'•'■; "--)a,.o,„,,av,; „j,,: 

;::::,;:;;':' "^ ■■■'■i ".  on."-..!,  ,o  ,o„r 

■I"|,-  r..la„„j;  ,„  11,0  M,l,jo..,  n,„(ta-  of  tin,  ,l,„o    ,  ... 


ii- 


362 


OPINIONS  OF  EMINENT  LAWYERS. 


the  niiinnerofgrantin;--  it,  I  must  beg  leave   to  mention 
some  other  i)arti(nihirs  to  your  Lordships  rehiting  to  the 
luannerofeolleetingthis  duty:  it  is  provided  (<V*^t^/w^/w) 
that  lor  securing  the  payment  of  this  duty,  the  importer 
(where  the  sum  of  money  to  be  paid  exceeds  ten  pounds) 
may  give  l)onds  for  Miesocurit\  of  the  money  payable, 
which  I.(,uds  are  to  1h'  taken  in  the  name  of  the  treasu- 
rer for  the  time  being,  which  is  the  natural    <'ousequence 
of  the  duty  not  being  granted  to  the  King,  because  if  it 
had  been  granted   to   the  Crown  the  1)onds  ought   to  be 
taken  to  the    Crown,  and    then,   by    prerogative,    those 
bonds  w(ndd  have  the  effect  of  judgments,  and  execu- 
tions might  be  taken  out  immeiliately  upon  them  ;    but 
vet  tliou'-h  tliev  seems  industriously   to    avoid  mention- 
ing  the  King  tiirough(uit  the    whole  act,  yet  they  think 
it  reasonable  to  couununicate   that  |)rerogative    to  their 
treasurer,    and  ])rovide    that   these    bonds  given  to  the 
treasurer,  lor  the  time  being,  shall  be   of  as   strong  and 
operative    a   nature  as    if  they   had  been  taken   to   the 
Crown  ;   for  in  case  any    persons  shall   not  perfo  in   the 
C(msideratio!i  of  his  bond,  the  treasurer  is  ^-tupowercil  to 
issue  viut  his  warrant  for  t'xecution  against   the  persons 
in  arrear.  and  this  power  is  su  al»solutely  vested  in  him, 
that   in  case  <>{'  any  misuser  of  it.  1   d    uot  see  that,  by 
this  act,  the  par'.y  agricved  can    have  any  relu-f  by   ap- 
plication to  an\   court    ofjii-tice   within   the    island:    I 
would    also  observe    that    in    the   issuing  of    tho.se  war- 
runts  tlirre  is  a  di-viation  from    the   counucii  l.i  •   that  1 
douotuell    uudcrslaud        The    proper   ollicer  to  whom 
writs  or  warrants  of   i-xccution   ought  to  be    directed  is 
the  marshal  th.-rc,   as  the  sheritV  is  hen-    at   home,    l)ut 
these  warrant-  from  the  treasurer  an-  to  l>e  directed   to 
nny  two  constaltle>,    who    aie   e.vprewsly   U)    proceed  in 


OK  TirE  COI,0.\IAT,  CONSTITUTIOXS.  363 

the  same  nxannor  as  marshals  are  to  proroed  at  common 
law  ;  aii.l,  therefore,  I  do  not  see  any  reason  vhy  the 
exeeution  of  these  warrants  should  be  taken  out  oV  the 
liMuds  of  those  officers  whom  the  common  law  appoints 
for  that  purpose. 

I   nu.s^    further    ol,s(M-ve    to    your  Lordships,  tlp-t  for 
thr  Letter  .lis.-overy  of  any  <Vauds  that  mav  liave  ))een 
••omm.tted  in  broach  of  this  act,  th,.  treasurer  and  con.p- 
trulleriu-e  •■mpouered  (and  that  with;mt  anv    informa- 
tiou  -ivcu  upon  oath  or    ..thcTwise)  to  summon  and  ex- 
amine  auy  pcrs,ms  wb.m.   th.y  i„   (Um,-   discn-ti.m  may 
.suspect  of  haviuK  acted  cnutraiv  to  this  act  ;  a.»<l  those 
persons  suspccte.i  are  to  answer,  upou  oath,  to   all  such 
interrocjatories  as  th-y  shall  tliink  (it  „  put  to  them,  re- 
latmntoth.jandiu.ir.    removal,    o.    impoi  tatiou  of  any 
strong  l„,unrs,  .^e.       It    is   true    that  tha  penalties  Hut 
are  to  he  under  (in  rn<o  of   r.-fusin-   io  an-w,.,)  :,rc  nJt 
so-reat  asiucasi.  of  ,.„„vi,.tiou    by    other    evidence; 
but  I  sul.mit  toyour  L  .nNhips  whctluT  it  i^.ot  ahvavs 
imreasonableforany  man,  in  :iny    case    t<.    be    ,,bli..ed 
under  any  penalty  wluit-eever.   to    a.'en.e    bi.uself  "the 
tcmpation  to  perjury  is  so  verv  i,reat  in  such  easc>,  and 
'1'"  oalh-.,  ojfi''^-,  (nf  the  nature  ufwhiih  (hi.    is)  have 

'"■'■"   ■^"'•''''"  an.l   ^..uiuel, lemiud,    that  I    think  I 

" '  ""'  ■^•'^   ^'u.^    ibiu-  lurtb.r  .•uncernin-  it. 

Anotiier  ob>e,vafioM  ubiel,  I  ^i,;,ll  la v"  b..fore  vour 
l^"id>hipsi>  the  penalty  ui,i.l,  is  ena.ied  upon  the  re- 
_'u"vin-  -ir  landing  any  li.pior^  eoutrarv    in    tlH>  aet.— 

''■'"■  l"'"^'>'.V'^"ut  restrained  to  any  .trnn:,l„p,ors  that 
Nl.oul:|l,en'n,oved  or  landed  l,v  tl,eeun<ent  or  privity 
"I  '!"■  Uia.ier  urouner  .uea.i,  re.pi.,.|i\ ,.  „e>M'l,  bi.t  it 
is  w  .nie.l  •„  s..  l,u..-e  a  manner,  as  e.  «.  n-.  wines  or 
-^tron-  ll<piors  .shall  be  rcmovedoreonvev-.l   j:- l i 


364 


OPINIONS    OF   EMIAKNT   I.AWVF,r?3. 


ed,  &c.  imrlor  the  penalty  of  forfeiting,  &c.  so  that  for 
aught  I  can  see  to  the  contrav,  a  coiniiion  sailor's 
running  a  dozen  of  beer  on  shore  may  niake  the  owner 
of  the  vessel  and  cargo  liable  io  the  penalty  of  this  act, 
which  is  no  less  than  the  forfeiture  of  all  such  wines  or 
other  strong  liquors  as -liall  be  attempted  to  be  lauded, 
or  the  value  thereof  in  money,  together  Avith  the  siiip 
or  vessel  in  which  thoy  were  iinpoi-ted,  with  all  her 
guns,  tackle,  furniture,  amnuuiition  and  apparel,  I 
think  I  need  not  sa\-  any  thing  more  eonceruing  the 
unreasonableness  of  this  penalty  tbiin   biirdy  to  state  it. 

Tho-  ol)servati()ns  v.hieh  I  have  now  l.iid  l)efore  your 
Lordships  contain  all  the  ol)j.ctions  which  I  have  to 
this  act  ;  and,  upon  consi(U>i-a»i(;n  of  them,  your  Lord- 
ships will  determine  whether  ii  will  be  proper  to  be 
passed  into  a  law  or  not. 

KicH.  West. 

January  21,  1723-1. 

(7.)  ^fr.  Wisffi  oJijecti'inff  to  rar/'t;/^  (vt^  of  flw  Bar- 
ludoes  ^isn<  nt!/h/.  -s/i  uriinj  fl.iir  inip'f/i<'.\\. 

To  the   Right  IIonora))le    tlie    Lords   Conuuissioncr,s    of 

Trade  and  Plantjitions. 

Miiy  it  please  your  iii)rd>liip;-; 

Jn  obedience  tp  yoiu'  Lonl-b'ps'  commands,  signified 
unto  me  In  .Mr.  ScirclMry  ''opple.  \  have  perused  the 
sevend  f'lllowiug  ,u'ts  pjissed  in  'he  island  of  Harb;uli»es 
in  the  yiMi-  1717  an<l  I71S  ;  and  as  to  these\eral  acts, 
of  which  the  titles  ure  as  follows,  viz:  ''an  act,  ena- 
bliim  the  rcniwieut.itives  of  thi-  piui>!i  of  Christ  rhnrcli 
to  --fll  -i\  acre-  and  thirtv  i)ci-ches  ot  land  in  tlu'  ^aid 
parish,  rmincily  (li     i.iu'!    nf  I'hilip    Howidl,    tlcceased" 


OF  THE  COLONIAL  COXSTITUTJOXs. 


365 


(no  objection);  "  a  supplemental  act    to  the  aet  laving 
an  imposition  or  duty  on  all  sugars,  molas.es.  rum 'cot- 
ton and  ginger,  imported  into  this  islan(^  which  are  not 
the  natural    product  and   manufacture    oi'  some  of  Ills 
Majesty's  colonie.s"(no  ..bjection)  ;     -  a.n  act    to  prohibit 
masters  of  .ships  and  other  vessels   from   landin-    aliens 
or  IbrcMgners  in  this  island  without  a  license  for  so  .loing 
from  the  Governor  or  Commander-in-chief  for  the  time 
bomg"  (no  objection)  ;  '^ui  act  for  providiu"-  a    recom- 
pence  for  Thomas  Whaley,  attorncx  at  law.  clerk  to  the 
couun.ssi,mer.s  of  contracts,    i\n-  repairing'  the  lortifica- 
tions,  lor  his  drawing  several  articles,  an.l    other  writin^r 
for  the  country  service,  and  also  for  satisfaction  of  some 
charges,  &c.  •  (no  objection)  ;    -an  a<d,  the  better  to  ena- 
ble committee  of  public  accounts  of  this  island  to  settle 
the  accounts  of  Richard  Downs,  late    treasurer    of  this 
i.-land,     deceased  (no  objecti(m);     'an   act,    appointing 
agents  t<)  transact  and  negotiate  the  afiairs  of  this  island 
in  (M-eat  Britain- (no  objection);    ••  an  act,    t.)    prevent 
Ills  Majesty's    subjects,  within  this  government,  f.om 
iMViug  any  trade  or  commerce  with,  or  giving  any  pro- 
tection,   encouragement,  or  assistance,   whatsoevsr,    to 
any  of  the  rebellious    subjects    of   his    most    Christian 
Majesty,  belonging  to  the  island  of  Martini., u«-   (no  ob- 
jection); "an  act  for  the  cncomagemcnl  of  David  Aubin, 
gentleman,  in  two  .several  proje<tion<,   l,v  liim  invented.,' 
(no  objection) ;   -  an  act   to  empower    the    tivasurer    of 
(his  i.sland  to  defray  the  expense  ,,f   the  late-  great  ses- 
sions, held  (m  the  sec<md  Tuesday    in  De.-mber,   1717" 
(no  objection)  ;    "an  a-t  to  raise  a    l,>vy   on  the    several 
inhabitants  of  this  island"  {no   nhjiv-tj,,!,) ;    .,,,,   .,,.(    j-.^j, 
til-  l)efter  onh'ringand    n-uh.tlni.-    Hi>    Majesty's    high 
!uid    honorable    court    of  e.vciinpur,  and   picas   of  the 


i 


■,',p. 


».'li 


"It 


»  •   1   c 
( 


If  .^  : 


366 


OPIMONS    OK     EMINENT      I.AWVKR?. 


crown"  (no  objection) ;    "an  act,  for  the  better  ordering 
and  regulating  His  Majesty's  courts    of  coiuuion    pleas 
within  this  island"  (no  oljjection);  "an   act,  appointing 
in  what  manner  salt  and  all  sorts  ofgi-ain,  imported  in- 
to this  island,  sh:il!  l)e  sold  or   disposed    of"  (no  objec- 
tion) ;  "  an  act  to  raise  a  levy  on  the  several  inhabitants 
of  this  island"  (no  objection);  "an    act,  for    encourage- 
ment of  Thomas  Sainthill,  gentleman,  in   his  projection 
of  a  mill  for  grinding  sugar-canes"' (no    o])jection)  ;  "an 
act,  for  the  iurhter  and  bettor  enabling  the    committee, 
appointed  for  settling  the  public  accounts  of  this  island, 
to  proceed  t(;  the  balancing    accounts   (4'  the  honorable 
Thomas  Maycock  Es(j.,  late  treasui-er  of  the  said  island" 
(no  objection)  ;  "  an  act  to    empower  the    treasurer  of 
this  island  to  defray  the  expense  of  the  late  grand  ses- 
sions, hehl  for  the  body  of  this  island,  on  the  10th,  11th 
and   12th  days  of  June,  1718"  (no    objection);  "  an  act 
granting  a  free  liberty  to  the  inhabitants  of  this  island, 
in  general,  to  load  and  unload,    to    and    from    any    the 
bays,  creeks,  or  harbors,  in    and  about  this  island"  (no 
objection) ;    'an  act  to  confirm  an  assessment  of  negroes' 
hibor  and  carriage  of  carts,  laid  on    the    owner- of  said 
negroes  and   carts,  within  the  parisii  of  Chiisi-Church, 
by  the  gentlemen  of  the  vestry  of  the  said  parish"  (no 
objection);   "an  act,  apj)ointing  agents    to    transact  and 
negociate  the  allliiis  of   this  i.slaud  in  (JrcMt  Britain, "  I 
have  no  objection  to  theii-   l)eiug  passed   into  law. 

15ut.  as  to  tbi'  act,  entitled  "an  act,  n'(piiring  all  per- 
sons to  bring  into  the  treasuier's  nllice,  a  list  ofall  or- 
ders (hie  to  tlieui  from  llie  public,"  I  uuist  beg  leaye  to 
observe  to  your  Lordshi|)s,  that,  as  only  tiftcen  days  arc 
allowed  to  bring  into  the  trutsurer's  office  all  orders 
which  any  man  may  have  due  to  him  from   the  public, 


OF    THE    COLOMAL    CONSTITUTION'S. 


367 


upon  pain  of  being  postponed  in  the  payment  of  hia 
debt,  that  :t  may  be  very  injurious  to  persona  dwelling 
out  of  the  island  ;  and;  theieibre,  I  submit  it  to  your 
Lordships,  whether  it  would  not  have  been  reasonable 
to  have  allowed  unto  such  persons  a  longer  time  for  the 
producing  of  their  orders. 

Besides  tlie  above  menti(jned  acts,  [among  which 
your  Lordsliips  will  observe,  that  there  are  several  pri- 
vate acts]  there  are  four  other  private  acts,  all  them  in- 
tended to  dock  the  entails  of  particular  estates,  of 
which  I  cannot  report  any  one  to  be  proper  to  be  passed 
into  law  :  the  first  of  which  is  an  act,  entitled  "an  act 
to  docic  the  entail  of  a  plantation  in  the  parish  of  St. 
James's,  and  the  negro  slaves  therunto  belonging,  and  to 
vest  the  fee  simple  thereof  in  William  Thorpe,  gentle- 
man, youngest  son  of  Robert  Thorpe,  deceased."'  On 
which  act,  I  must  observe  to  your  Lordships,  that 
though  there  is  a  reservation  of  the  right  of  Thomas 
Thorpe,  who,  in  case  he  should  return  into  the  inland  of 
Rarbadoes,  would  l)e  entitled  unto  the  estate  in  fee,  yet 
it  is  upon  this  condition,  tluit  he  should  live  in  the  is- 
land now,  though  this  is  in  pursuance  of  the  testator's 
will,  yet,  while  it  stood  upon  the  foot  of  the  will,  Thom- 
as Thorpe  might,  and  porhaps  with  success,  have  dispu- 
ted the  valiility  of  that  condition,  but,  if  it  be  annexed 
unto  his  estate  by  the  parsing  of  this  act  into  law,  he  is 
then  bound  down  to  the  jterformaiu'e  of  that  codition 
without  remedy,  and  his  removal  out  of  the  i.^^land,  to 
reside  even  in  Kugland,  might  be  construed  to  be  a  for- 
feiture of  his  estate  ;  I  submit  it  to  your  Lordships  to 
determine,  how  far  conditions  of  this  nature  are  to  be 
encouraged  or  not. 

The  second  is  r-i  act.  entitled  "an  act  to  dock  the  en- 


3(58 


OPINIONS    OK  EMINENT    LAWYERS. 


'1 


tail  on  certain  plantiitioiis,  in  the  parishes  of  8t.  Thomas 
andSt.  Jamos.  andtove^t  the  same  in  Joseph  Gibbs  Esq. 
Upon  \viiic:h  act,  I  nuist  •  jservo  to  your  Lordship.'-,  that 
the  t„<t;itcs  hy  this  act  tobe  vested  in  Joseph  Gibbs  Esq, 
are  derived  Iroiu  the  wills  of  two  different  testators, 
who  created  the  entails  the  remainder  in  fee  to  their  re- 
spective riiiht  heirs,  and  yet  there  is  no  recital  in  this 
act  [by  which  it  is  proposed  to  dock  the  said  several  en- 
tails,] of  the  several  consents  of  the  next  heirs  of  either 
of  the  said  testators,  Avhich  I  conceive  to  be  not  only  re- 
quisite, in  consecpience  of  the  Governor's  instructions, 
but  even  of  natural  justice  and  equity. 

The  third  is  an  act,  entitled  '-an  act  to  dock  the  entail 
on  two  messuages  and  three  pieces  of  land  in  the  town 
of  Saint  Michael,  and  on  certain  negro  slaves,  and  to  vest 
the  fee  simple  thereof  in  Martha  Lenoir,  wife  of  John 
Lenoir  Esq.,  and  daughter  and  heir  of  William  Crajrgs 
Esq.,  Lite  of  the  town  of  St.  Michael,  merchant,  deceas- 
ed. Tiie  end  of  this  act  is  to  dock  the  entail  of  an  es- 
tate which  is  supposed  to  be  vested  in  Martha  Lenoir,  by 
virtucof  its  having  been  granted  to  her  and  her  heirs 
lawfullj-  begotten.  My  ol)iection  to  tliis  act  is  that  it  is 
impertinent,  for  without  the  assistance  of  this  act  she 
hatli  an  estate  in  fee  simpl"  already. 

The  fourth  is  in  act  entitled,  '-an  act  to  dock  the  en- 
tail limited  on  certain  lands,  &c."  in  the  parish  Oi  Saint 
Philip,  and  to  invent  the  iV-e  thereof  in  John  Jones,  gen- 
tleman. My  objecticn  to  this  act  is,  that  though  there 
is  ill  it  a  reservation  of  the  right  of  the  Crown,  yet  it  is 
not  proper  to  be  confirmed  upon  the  account,  that  a 
clause    is  wanting     to   save  the    rights   of  all   bodies 


OF  THE  Cuf.OMAL    COiNSTlTUT.'ONS.  369 

politic,  and  all  other  persons  whatsoever,  not  mentioned 
in  the  act. 

llicH.  West. 
Au,3iist  3,  171'J. 


(8.)  Mr.  J^an&s  oLjecthi,/i  to  an  act  of  th/i  same  act, 
a-9  foijit. 

To  the  Right  IIonora1)le,  the  Lords   Ccnunissioners  for 

Trade  and  Plantations. 
My  Lortls  ; 

In  obedience  to  your  Lordships'  commands,  signified 
to  me  by  Mr.  Popple's  letter,  referring  to  me  an  act 
passed  in  Barbadoes,  in  1722-3,  entitled  "an  act  for  sup- 
porting the  honor  and  dignity  of  the  government ;"  and 
also  a  copy  of  a  petition  from  Mr.  Worsley,  lati;  Govern 
nor  of  Barbadoes,  praying  His  Majesty's  directions  for 
the  recovery  of  the  arrears  due  Upon  the  said  act,  and 
(U'siring  my  opinion,  whether  any,  and  what  method,  by 
law,  can  be  taken  for  recovering  the  same,  I  have  con- 
sidered of  the  said  act  and  petition,  and  humblj-  observe 
to  your  Lordships,  that  I  itpprehen''  the  following  ques- 
tions may  arise  upon  the  construction  of  this  act,  as  to 
the  method  of  proceeding  for  the  recovery  of  ihe  ar- 
rears, and  which  1  Ix'g  leave  to  state  to  your  Lordships 
with  my  opinion  thcMuu. 

Bythe.i't.  i'"rt:iin  (hitics  were  laid  on  negroes,  &c. 
r.nd  grantii!  to  His  Mijosty.  his  heirs  and  succe.s.sors.  for 
the  uses  therein  specilied,  the  first  whereof  was  for  the 
payment  of  the  (iovcrnor's  salary,  which  was  settled  on 

him  during   the  whole  time  of  his  government,  and  di- 

'48 


Ill 


fi(M 


37 


iO 


OPINIONS  OF  l',MI.\E.\'I'  LAWVEKS\ 


rections  aro  therein  uivcn  for  tlic  oollet'tiiiti  and  levying 
the   siiid   ilnties. 

By  the  tentli  cluuse  in  the  act.  if  any  pennon  charged 
or  cbargcahh?,  h\-  vii-tne  ()(' the    act,   m-ulect    to  irive  in 


the 


number  of  his  neuri 


i^'c.  or   w  he,  havinii   ;i"i\en  in 


the  number  of  his  neuTocs.  ^^c,  nei;lect  t:>  pay  at  tin-  time 
prescribed,  he  shall  fMrfeit  donldc.  A  pic^tion  seems 
to  arise  upon   this  claus(>,    wheth   r,  altlii)ut;h  the  re[)re- 


sentutives  should  not  ictuiii  a  li-t 


'i'aidters,  accord- 


ing to  the  dirtH'tions  of  tlu'  ;  iirhth  clause,  whether  the 
treasurer  may  issue  executions  ujion  llu>  dcfaidters,  or 
in  what  other  method  he  ina\-  proceed  I 

The  act  of  asstunbly  is  not  socdcirly  penned  upon  this 
point  as  it  ought  to  l)e.  but,  up'>u  considering  the  seve- 
ral clauses.  I  think  if  the  person^;  (diargeable  neglect  to 
give  ill  th"ir  number  of  negroes,  or  neglect  to  ])ay, 
having  given  in  as  is  dii-i-cted,  notw  iiiistanding  the  rep- 
resentatives should  not  return  a  list  of  I  he  defaulters,  ac- 


cording to  the  eiuhtli   clau-e.    tlii'\-   v  ill 


orlei 


t  doubk 


and  the  treasurer  m;n- 


'\  y   tile   lorfe!*iirc    accordinu'  to 


the  directions    of  the    twelfth    dausi 


snd   ju    Older    1( 


proceed  thei-eto,  he  is  to  recei\-e  any  legal  e\idenci'  that 
.shall  be  given,  l)ut  I'.c-  cannot  exiimiiu'  the  party  him- 
self because  it  may  tend  to  subject  liim  to  a  ))enaltv  : 
this  method  of  proceeding  m,iy  pei'hap-  1k'  the  ri'  ■  t  ex- 
peditious, '  ! >  ti;,!  y,^o^f  certain  will  li^'.  by  tiling  an  En- 
glish bill  I  ■  i  per  cwu  t  ill  (lie  attorney -general's 
name,  on  li■.^  .tiajestN  ■.- behalf,  for  the  reco\  ery  of  the 
single  duty,  waiving  tbe  pcn;dt\ . 


By  the  fourth  and  sixth    clauses  ,n   the  act,    1. 
lid  patent  otticer^'  are  charged  will 


w\'ers 


>  a  sum  ceri.i!  i,    ro- 


om it  tei  I  to  be 


spectively,  but  the  iion-paymeut    of  it 

made  a  tbrfeiture.     A    cpiestion    may.    therefore,  arise, 


OF  THK  fOI.OMAL  CONSTTTTTTIOKS. 


371 


wlietlur  the  trca.-siircv  may  issue  fxecutioiis  Ibr  the  sm- 
•Av  '\\\\\  '  1  tliiiik  tliLTf  is  111)  authniit V'  <^iven  fo''  tl'C 
treasurer  tn  jjiweed  in  the  suiuui.iry  way  he  is  empow- 
ered U)  do  u[»..u  ;:  j)eiiaity.  and,  therefore,  the  proper 
way  oT  pioi-eedinj:;  in  tiiis  cast.,  -ill  l)e  by  Kuglish  bill, 
in  the  attorney-gener.d's  name,  on  His  Majesty's  l)e- 
liidt: 

Tbe  coiiiniittc-  fur  setliiiiLi:  ilie  ])iiblie  accounts,  and 
wbo,  in  tlie  fourteentli  clause  ofthis  act,  are  vesl.'d  with 
pv)wer  to  proceed  a;:ainst  tlie  trea>urcr  for  any  ne-lect, 
the  same  manner  as  iic  (.u<^ht  to  have  done  a^ain-t  the 
owners  theuise!\-es,  are  by  a  !'(  i  inei-  law  made  'm  of  four 
menilx'rs   of  the  council  and  six  of  the  assemb,  Now 

it  hapi)ens  that  all  tiic-e  last  are  defaulters  ihemuelves, 
and  ha\i'  inciu'red  ;  'Uiiities  fo-  not  pursuing  the  act, 
and.  ttiercfoi'c.  it  is  a])pndu'n(led  they  will  (dther  avoid 
making  a  connuittee  to  settU'  tlie  treasurer's  accounts, 
iu  order  to  screen  him  or  themselves  (who,  it  is  said, 
have  given  him  security  to  indemnity  him,)  or  else  ff 
they  do  meet,  they  will  adjust  his  accounts  without 
pi-tjceeding against  him  for  lii-neglecl,  by  which  means 
there  v.ill  be,  as  there  lias  been  alreadv  for  two  years 
past,  a  great  dfiiciency  in  the  collection,  and  conse- 
<|ueiitly.  great  arrears  due  to  His  Majesty.  A  question 
may  ;iii,>(>  up.-n  this  :  If  i(  ap]>eai's  that  the  treasurer  has 
neglec'ed  hi. -  duty,  whci'eby  a  deficiency  in  the  collec- 
tion has  f)ceii  occa-ioiied.  ^\llat  method  will  be  proper 
to  be  talvcn  against  the  trea-urer.  \'r.\-  what  is  due  to  the 
(ioveiaior,  although  the  committee  of  pultlic  accounts 
should  do  a^  ;ib>vo-iiH  ntioned  .'  I  think  by  the  four- 
teeiith  chr.Hc.  the  parly  charged  wi'li  the  dutv,  wlio  was 
til"  original  dciitt)r.  i<  expi'essiy  di^'hargeil,  and  the 
trea-urer.  by  rca-on  of  his  neglect,  is  put  iu    his   place. 


'4 


372 


OPINIONS  OF   EMIN'F.NT  I.AWVERS. 


and,  thorpforo.  in  cases  whore  the  treasurer  ini^ht  clenr- 
\y  by  hiw  have  levied   the    penalties,   and    li;is    wilt'ully 
neglected  to  do  it,  he  will  lie  liable  to   ;ins\ver  the  sin- 
gle duty,  and  a   bill   may  be    brought    against   hiui,    in 
the    attorney -general's  nanu',    for  the  re('()\'ery  thereof. 
The  treasurer,  who  is  clujsen  annually,    is  obliged  by 
the  annual  excise  act,   to  enti'r    into    a  recognizance  to 
His  Majesty's  (Jovernor,  with  such  good    and    sufHcient 
securities  as  the  said  Governor  and  council  shr.ll  a])])rove 
of,  in  the  sum  of  .C1<),0(M)  f       the    faithful  discharge  of 
the  said  otlice,      A  ([uestion  nia\    ari-c  n|>on  this,  if   the 
treasurer  has  in  any   instance    iici;icctr<l  the    dut\-    re- 
([uired  of  him,  l)y  tiu'  act  uo\v  in  ci>n-ii|cratioii.  whcfiicr 
the  recognizance  for    the  faithful  discharge  of  ids  ollice 
can  be  put  in  suit  by  a  \ciir  f,ti  ia.s^  unless  such  negii-ct 
shoidd  appear  l)y  the  procedings  of  the  connnittec.  and 
Ml  Avhat  mann.cr  ;    if  judgiuent  should   be  obtained   upon 
this  recognizance,  will  the  money   Icviecl  thereon  bt<  ap- 
plied \      I  think  it  is    not  -u'cc-sary    that     thi'    accounts 
should  be  (irst  adjusted  b\   tiie  conunittee,  or   that  thcv 
should  determine  till'  negieit  before    the    treasuicrs  re- 
cogniziince   is  put  in  suit.      I  think  the  wilful  negle<'t  of 
the  duty  reipiired  of   him    by    the  act   will    be    sucli    a 
l)reach  o'the  condition  as  max   be  assigned  n|Min  a  v./zv 
tnctd-^.  beciUi.-'e,  I  ob>ei\e,  the  reco'^nl/.a nee  was  entered 
into  after  the  passing   of   the    ait.  \vliercb\     llie    se\ei-al 
matters    mentioned    in    tlir    ari    iU'c    made    jiart    of    lii< 
duty. 

I  have  now  statu!  to  \our  F.oidship-  the  sevend 
(pie.stions  that  1  apprehend  ma\  ari,-e  upon  ihe  c.inHrl- 
eratioii  of  this  net.  a<  lo  ihe  method  ot'  recovering  the 
several  ihities  granted,  and  have  uiven  yoiU'  l,ord<hips 
ni\   thouu.hls  upon  them.     1  b..-  leave  to  saw  that   upon 


I 


OF  THE  COLONIAL  CONSTITl'TIONS. 


873 


tlie  wliole,  1  think  there  is  a  very  plain  k  inedy  for  the 
recovery  of  these  arrears. 

Frax.  Fane. 
May  11,  1732. 

('.».)  Tht opinion  of  the  Atfoni,  ;i-(iciuraJ  Ji'mrlin, 
of    liitrlxtJus,    ijH    the    art    ;>/  As.',, nil'hj  <  utifin,/  jxip,)' 

ni'iih  )/. 

May  it  please  your  Excellency  : 

1  ])rosiniie,  with  your  Kxcellency's  piMiiiissidn,  and 
niid.  :-vonr  pardon,  since  I  am  (li>al)le(i  Iron  i  wait  in"- 
on  yon,  to  ;^ive  your  lOxcelleucy  my  thoughts  on  the 
act  rrlatin;.'  to  the  payment  of  the  liank  hills,  the  occa- 
sion of  which  was  on  the  act  ti»r  estaMishin^'  a  method 
of  credii,  &c.  which  said  act  oi' credit  Her  Majesl\  hath 
heen  -ra-iously  plea.^ed  to  repeal,  findini;  it  iiL'ainst  her 
prerogative,  and  for  the  disadvantage  of  hor  sul.jects  and 
trade. 

This  act  heinj^  repealed,  I  take  thi'  wholf  ju't  to  he  a.s 
if  no  such  act  had  heen  made,  .is  to  inn  xWwv^  in  t'orce 
now.  ;iiid,  hy  the  repeal,  the  wlioU'  is  ^omv  nn<l  cannot 
stand  in  part  ^'ood  ;in<l  as  to  the  oth.i  |);irt  void  the 
act   hein-^  an  entire  act  must  take  itslJite  toiiither. 

This  act  heii.M- roppiilt'd  and  in  liiis  state,  it  is  to  he 
considered,  wiiat  power,  or  rather,  wiicthcr  ilic  h'^isla- 
tive  authority  had  any  ])ower,  alter  tliis  repeal,  ty 
n»»keau\  other  law  relatinir  to  ii  Mild  I  |)resiiiue  they 
liaii  uot  any  sulficie'.t  authoi-ity  to  ||;;i|  puipKse  in 
tlieiii-chcs,  whi(di  Iler  Majest. ,  in  her  <;reat  wisdom 
lt»reseeinj!-.  ly  he>'  instructions  nppuinted  wiiat  was  her 
will  and  pleasiiii-  to  he  done  in  this  ease,  and  llieiclore 
;LI);)ollili_'ii    (hji.t     l>\     >iii!!!i.     !!.:\v     l:i\V-    thny.e     Oi",!!!!:'      •.•.he. 


w 


: ;  '■ 

1 

•< 

h" 


hH 


» ' 


371 


orixiDX  <  or  r.Mi 


'>-'!!       T 


i'   I,AV,VFJ;P. 


m 


wore  ohliii'od  t(i)»;ii(  with  tlicir  IclimI  sv.'-,'!ir'*it's,  l)o  no 
suilVTcrs  tlK'i\'l)y.  imt  !j>'  ic  t oii'diis  tin'  a -■  irav  lie  to  the 
Siuiie  state  tlicy  were  in  !>  'iorc  llic  ]t.i--<iiig'  the  s:iiil  act. 
80  tliat  it  siH'iJi  •;  eh';!!' iiiid  phii;)  the  n-.-.Mnhly  li:i(l  no 
other  authority  to  eii,ii'(  a  new  hi\v  hut  lidiu  li:T  Majes- 
ty's in-!ru('tioii-  ;  aii.l,  ther-,  1  we.  1  eonooivo  they  hiul 
lU)  otliei' iMundati'.n  to  eiiaei  this  ]\r\\  iiw  hut  iVoin  Her 
Majesty's  said  in-triu't'  ^n-.  and  wn;/h  lhv'\  ha\  ■  tlieiii- 
selves  :na(h' the  vdiiet' ^i-reund  ui'the  -aid  act.  and  hy  the 
said  instru  'ti'in-  Acre  limited  and  tied  ii|',  and  tlie  h'fiis- 
hitive  power  nnly  ((Uidifu'd  lo  iiiahe  a  iii'W  law  to  those 
paidieul.ir  end- and  i)iir[)  i-i'-  ai)|i.)!nted  lo  I  ler  Ma  jostv  s 
instiaietiiiu  ■  and,  no  ctli'M".  and  \\ha!i-\,','  they  ilo  heyond 
<»r  (lilt'ereut  I'ri'Ui     mdi  auth  ;'.ity.  i;    \oid. 

\\  herel'iiri',  il  i-  h\  to  he  iiM|U!  (  d  into  and  eniisjdered  ' 
■what  the  Slid  instructioii;;  a])|)  unt  aial  eni|iov,er.  and  I 
take  Il'M'  .Majtxfy's  woi'l -  to  l,c  eeilain  and  jilain.  ouh' 
to  restore  or  le-in-lal'  tho..e  [)j..-ous  who  had  jiarted 
witii  tln'ii-  if:j,al  sei'iuities  into  the  name  state  and  eoii- 
ditinn  tlh'\  Wi'ie  in  before,  and  :io  ntlnTwive  ;  Imt.  i>\\ 
tln'  eonlrary.  ihcy  had  ;•  ;ee(Mh'd  ihi'  -^aid  in-lrncliou- 
iuid  piiwei'.  and  en,-,"i<  d  n  luy  -traniio  and  ill.  -al  thin^'v 
hi.th  d !  tVtacnl  Imin.  and  repc'cnaut  ti.  ihe  aid  iu-liiif- 
tioas.l'or  I  cannot  lind  iliathy  any  pari  nf  I  lei  .Majesty's 
iir-trnct  inu-  thc^o  law-Jiiakors  were  an\  ua\s  Mujiower- 
ed  to  any  d  llie  sovenil  tliiiitrs  rojlowin^,  all  which  arc 
enacted  l»y  tho  said  net. 

'Idial  Ihcy  had  aii\  power  to  nltei-  I  ho  nature  ot'nny 
"Ichtand  to  nfivr  honds  tiie  forco  of  jtul<;ineiits,  without 
any  le<  al  jinteeedi  i;;-  thereto. 

That  a«t  eannot  «le»  hue  the  fti'ul  hundH  to  In*  judj;- 
ment''.  and  .so  to  npjxiint  that  e\eeiiti«in  shall  isMie,  itiid 
Im"  levied  011  any  estate,  real  or  persiinal,  of  the  delttor, 


<'l"  THE  COLONIAL  CU\>>T1TUT!(>.\ 


875 


and  ill  defiuilt  tl 


gal  and  coiitram-  to   ji 


it'ieot.  on  liis  person,  without  boiji"- ille- 


iw, 


For      '.t  tht'  .liToat  statute  of  Mauna  Chart 


I,  which  is 


so  (kv 


i.u-hsh  snhjects,  and  luith  heon  two 


thirty  timeHeoi, finned,   positively  declares   that 


ana 


diall  he  d 


no  man 


isseiz 


aw. 


•■•I    <:i    111-  iVeehold  but  \)y  duo  process  of 


And  how  this  act. 


statutes  ol'tlie  kin-doni  ol  Kuiiland. 
scizii.u-  an\    pers,,.,  ,,('   his    iVeeliold 
without     trial,    whether   ;1 


''"Mirary    to  this   and  uiaii\-  (.ther 


an  enable  the  dis- 


uiu'ther,  if  due,  it  is  satisi 


le   delit    is    d 


a  Dare  warrant, 
uc    or    not,    or 


am 


contrary  to  c(jniiiiou  liidd 


led  nv  not.sc'euis  verv  ,strany;e 


md  rv'asoM  as  well  a.s  li 


1    '■o\-ernor 


hu'tlier,  I  take  it,  that  the    ijier,    ( 

*■""•''  not  eiupouer  the   passin;-  any   such   act,   1 

till'  words  of  the    said 

Ih'   passed  thai  ai'e    \\ 

'ait  all   SUCH  h  w<  as    sliail 


iw; 


coniniission 


that 
iinissiow  are  that  no  laws  .^lall 
IHiunant    to  the    laws  of  Kn<dand 


eoi 


•>i'    pas>e<i    hei 


i"    .sjiall    he,  a.' 


"•■aras  may  he.  aoree.ahle  to   them,  and    this  act,    I 


ilUOSt     111    t   \r\  \     |).;pil(| 


K'un 


lakc  awa\   .ill  ih 


1    icpiiunanf.  nay   and  lurthcr  U 


*■  power  and  lorce  of   .Mauna  ("iiart, 


coutiar\    to    the   -aid 


1,     IS 


c"nin!i--ion    a^  W( 


iiciciore    \(i!i 
lent    that   i- 


'I'  I'  1-^  a  iita\iiii,  tint 


in 


a;;ainst    eonuiiMn  •ri-ht  or  r 


a~<   law,    and 
I  «•!'  parlia- 
<'a>on.  or  is  re- 


|"i-ii,iiil   Ml   ilnpossihi^.  in  It- 


ell.   I  -   VoMl 


Th 


:il    all  limited  autijoritir-;  mi^l   I,  ■  -tricfl 


'iherwiM',  wiiatovor  i.s  done  iiiidcrtl 


\   pursued, 


ic  picteiii'e   of  *neh 


aiillioritv,  i.s    not 


wair,-iiii;ii 


lie     I  lierel)\  .  ai 


III    lia\  .ny-  no 


lollllllallnli     |<i     M 


'|'|"'i  I    ami    maoilam   it. 


must  li\-   eon.so 


ipK-nof  cniso  and  hteome    inMrniiir.int    with    all 


acted  tht'rohy,  and  an  1 

limited  authorit 


llini'Ts 


lake    It  Ih     a-semhh     h.id    hut 


\     which  I  hc\    III  II 


1"'   I'arts  ot'  the   act 


e,\cet'd,  and    in   \,  i  \    |,.\\     i. 


iil\     iiiii-m 


ll 


II  >       t  W   \\\     I  I  1* 


il: 

ffl 


876 


OUNIONS    OF    EMINENT    LAWYERS. 


authority  givt'ii  to  the  gentlemen  therein  mentioned,  by 
tlie  verv  act  Usell'  is  but  as  conunisBioners,  without  iu- 
vei^ting  tlieiii,  in  tlie  leatit,  with  the  qualification  of  a 
court  of  justice,  and  a  commi.Sfsion  granted  against  law 
or  the  empowering  particular  persons  to  do  things  a- 
gainst  law,  is  void,  and  so  it  would  be,  if  they  had  en- 
acted it  themselves,  and  the  express  words  of  the  law 
are,  that  no  conuuissions  may  be  given  or  granted,  to  do 
any  thing  against  th-  law  of  Gud  or  the  nation,  as  to 
take  or  impiisou  n.en's  bodies,  enter  upon  their  lands, 
or  take  their  g(«ods,  without  due  order  of  law.  and,  if 
anv  sui'''  be  gnmted,  the  law  declares  such  commissions 
void. 

It  is  to  be  allowed,  t]t".t  the  legislative  authority  of 
this  island  hath  sullicient  power  to  do  nian\  ami  nol)k' 
things,  fnr  tlie  wi'll  being  thereof  and  for  the  t'ase  and 
satetv  ol' the  people,  and  the  more  they  keep  themselves 
within  th,'  limits  of  the  (lovernor's  c(unmissiou  and  Her 
Majesty's  instructions,  the  firmer  will  their  acts  be, 
and  of  uuich  greater  foi-ce,  when  suppoited  i)y  law  and 
regal  powiT. 

But,  on  tiie  other  iiand,  it  cannot  l>e  granted  them. 
that  the\  are  capalile  to  enact  at  their  own  will  and 
pleasuie  w'.iat  tbcy  tbink  fit.  For  they  cannot,  by  a 
li'.w.  idler  ibc  I'oininou  law  of  Knglaud,  au'.i  and  tlie  sct- 
tb.'d  conrsr  of  pioci'cdings  thereon  ;  they  cannot  ciiangc 
the  connnon  siMiu'.iii  -  of  the  kingdom.  'L'bcy  caninit 
enact  an\  Ibing  agaiiot  Her  .Majesty's  nreioi^ativc. 
Thev  (Miiuoi  takr  awa_\,  ly  any  act  the\  can  establish, 
iin\  authoiil\  \f-ted  in  the  (iovi'rnoi-  liy  Her  Majesty'."* 
counnission,  wiili  in:in\  other  tiiiii^';-',  too  man\  hi-r.'  ti 
be  c;.nnii'rated  tbe\    cannot     piclend    to    ba\c    an 

cijiial  powci  w  II ii  >ii<'   parliamer.t  ot  Knglaud. 


OF  THE  COLONIAL  CONSTITUTIONS.  377 

So  I  ohsorvo,  that  many  brrcnohos  of  this  act  are,  that 
in  case  tlie  debtor  fail    to   perform  many  requisites  ap- 
pointed by  the  said  act,  thou^rh  without "arv  legal  trial, 
or  hearing,  or  jud-ment,  whether  he  hath  really  offend- 
ed against  the  commands  (.f  the  said  act,  shall,  "ip^n  fac- 
to, be  c.nnnitted  to  the  conmion  gaol  and   there  t<)  re- 
main without  bail  o-  mainpri.ce,  he  and  his  cause  being 
unheard  and  debarr.>d  of  any   benefit  of  law  or  e(iuity 
and  when  and  haw    to  be    deliyered,   though  ney.T  so 
much  justice  on  the  i,risoner's  side,  is    not  appointed  or 
pernutted,  and,  if  this  can  be  calkd  justice,  it  is    ,>nn- 
»ujmj,i.,  which  is,  .v,//,,,„,,  inqniria  a  misera  c-st  am, 
\i(it  jn^i  est  I'll  /mil. 

Indefinite  imprisonnunit    is  against    the    law  of  the 
land,  and!  take  it  to  be  expressly    iigaiust    Her  Majes- 
ty's instructions^  for  any  p,>rsous  to  be  committed  with- 
mit  b-nl  or  mainprize  for    any    <-rime    under    felony   or 
treason,  for    Her  Ma je<ty    hath   been   graciously  pleased 
to  counnand  her  judges  in  take  bail  f.r  any  person,  com- 
Hutte.l  for  any   Time  except  frlony  or   tn-ason,   ami  that 
too  must  be  plainly  and  rl..a,ly  ..xpre-sed    ux    flie  war- 
rant of  ^///V////v.v,  and,  therefore,  I  cannot  but  be  of  ..pin- 
ion, that  all  th-e  brau^lies  of  thr  said  act,  ordenng.vuch 
illegal  con.mitm.-uts.  ar-  agaiu>t    law   ana   the  (^le.Mi's 
iiisfnictions,  and  theref  .re  bc.-om.'    void. 

There  is  a  settled  maxim  in  tho  law  tli-t  -o  pc-s.Mi 
sliaill»e  obbged  t'.  a(vu<r  himself,  y.-t,  l)^■  the  said  act, 
p.T.on>^aiv  obliged  to  .wear  uli.tji,  i-  tiny  haw  had  lar- 
gn-.'ir.lit  than  uarr..;ited  by  (hrl.ile  repeale.i  law,  and 
th.  ivby  bring  tlien.Mhv-.  within  tlic  penalty  thereof 
" "''  ''"•  P"'^-^  '•■  'ii'.>    ont  Km-,w  the  real    title  ,.r  vaba> 


ol'his  estate,  \  et  tl 


without  an\   leiral  trial.  I 
lit 


le  e(.iinniv-.i.,ner'-  b;nc  alr-nlnte  p^wer 


\ 
>  '  tl 


o  coiniii  i  t   uiii'ti   i. 


o''"»>  «■'-• 


il 


■t*m  -   '''     I 


% 


[1 


378 


OPINIONS  OF  EMINENT  LAWYERS. 


The  statute  of  Magna  Charta  is  express,  that  no  person 
shall  be  restrained  of  his  liberty,  or  disseised  of  his 
lands  or  tenements,  but  hy  due  trial  according  to  tho 
law  of  the  land,  the  bouefit  of  which  statute  is  wliolly 
taken  away  b\  this  itct,  aud  the  subject  debarred  of  his 
liberty  withiMit  trial  or  an}-  other  due  course  of  law. 

Also,  in  most  of  the  branches  of  the  said  act,  it  is  en- 
acted that  if  compliance  in  payments  iS:c.  is  not  exactly 
as  the  act  directs,  then  t.ie  commissioners  are  empow- 
ered to  issue  out  executions  and  thereby  levy  not  only 
on  the  debtor's  real  estate,  but  also  on  hi-  personal  es- 
tate he  shall  then  .  i' possessed  of,  and  this  without  legal 
trial,  whetlu'r  the  said  estate  is  liable  to  such  execu- 
tion, or  whether  the  party  hath  right  or  title  to  the 
same  or  :iot,  for  many  persons  may  bo  possessed  by 
several  lawlul  ways,  as  by  late  managemert,  executor- 
ships, as  attorneys.  lVc.  who  have  no  legal  right  to  such 
personal  estate,  b\  which  mcauv  by  the  borrowers  act, 
the  right  owner  may  lie  stripped  of  his  estate  without 
trial,  and,  liy  the  said  act,  is  afterwards  debarred  of  any 
remedy  either  in  law  or  e(piity,  foi-,  In  the  words  of  the 
act,  a  bare  posse.-^sion  eiuitlcs  to  an  execution;  and,  if 
iheoflicer  find  not  siillicient  to  satisiy  what  is  re(piired, 
tlien  ibe  person  may  be  comMiittcd  to  gaof  without  be- 
ing tried  whether  lie  hatli  olVeiu'ed  against  the  said  act 
or  not,  or  l>eing  adinittf  d  to  the  liherty  ol'  lelief'  in  eipii- 
ty,  writ  of  error,  or  appeal  to  the  (ioverntir  or  llei-  Maj- 
esty herself,  which  (with  submission)  I  cannot  conceive 
to  be  consonant  tn  Her  Maje.st\'s  order  or  hei-  'n-acious 
int<Mitions   therein. 

By  this  act,  all  entailed  estates  are  iialilr-  to  exe.u- 
tion,  and  theri'ln  all  remainders  and  reversions  mav  be 
defeated,  which  is  taeith   the    docking  all    such  estuten 


?l 


#  ? ,  ■ 


il 


OF    THE  COLONIAL  CONSTITUTIONS. 


379 


against  the  law  of  England,  and  infants  and  strangers 
that  havo  no  privity  or  knowledge,  persons  ))eyond°the 
seas  that  may  have  interest  and  right  in  those  estr.tcs, 
may  have  their  estates  torn  to  pieces  and  they  strippe."" 
:.om  their  possessions  without  trial  or  any  process  of 
law.  In-  a  pretended  execution,  without  anv  record  or 
judgment  to  support  it.  and  this  without  any  relief  or 
remedy  after  In  an\  j>roccss  of  ^aw,  or  appeal,  what- 
soever. 

The  authority  given  to  the  said  conunissioners,  being 
to  them,  or  to  either  of  them,  I  conceive  to  be  uncertain 
and  inconsistent,  f.)r,  tiiat  each  person  having  the  same 
fullness  of  power,  two  executions  may  issue  at  one  and 
the  same  time,  for  the  same  cause,  which  is  against  jus- 
tice ;  but  Icannot  conceive  that  the  povver  of  issuing  out 
executions  can  be  lodged  in  two  person.s  at  one  and  the 
same  time,  and  I  presume  no  such  precedent  can  be  pro- 
duced, for  it  was  nevi-r  known  that  the  power  of  issuing 
out  execution  was  ])laced  in  any  other  hands  than  the 
chief  judge  of  a  court. 

The  great  and  orinciplc  clause  in  the  se.  nd  folio  of 
this  act,  which  makesall  the  estates  liable  to  answer  the 
Im)u<I.-.  entered  into,  depends  oitirely  on  the  re])eale(l  act, 
and  is  so  expre<<,Hl.  which  act.  from  the  time  of  Her 
Majesty's  repeal,  hccunc  void  in  law.  a  if  no  such  act 
Iiiul  (  ver  been  made,  and  if  tliis  .-tands.  tluMc  is  the 
same  reason  for  all  thr  rest  of  the  .said  act.  and  this 
would  be  to  opp,,<e  ]]rv  .Majesty's  ;iuthority.  Pnd 
iiiMke  tinr  act  of  force  and  valid  which  ll(.r  Majestv  hath 
positively  repealed,  an. I  therebv  dmy  her  aufhoiity 
the  dauir«M-  of  which  ouTbt  t'l  lie  lii<rhl\    reL^■ll•ded. 

Hy(lH>gr.>at    -vneral  .laii-e  mi    folio  :;.  if     i>   . nacted, 

that     till'   ((Mni'si^v!!;!!:'!^      ::;■    :!*!!:i;-    i  J.'   i\.,.::: 


I 


380 


OPINIONS  OF  EMINENT  I<AWVERS. 


pay.iient,  inuiiLHliately  reciiiired  to  issue  out  a  wariaut 
or  oyecutlou,  under  his  or  their  hand  and  seal,  to  l)e 
directed  unto  such  luarHliul  or  oHieer  as  the  said  eoin- 
niissioners  (note  the  iiower  is  here  jointl}-  in  both  the 
commissioners,  thou^ih  separately  before,)  may  choose 
to  attach  all,  or  any,  the  estate  of  inlievitance,  or  other 
estate  real,  whereof  such  pers(m  or  persoiis,  are,  or  were 
actually  seized  at  the  time  of  entering  into  tlie  said  ob- 
ligations, in  whose  hands  soever  the  estate  shall  be 
found. 

On  which  clause  T  observe,  that  no  other  estate  is 
made  liable  to  such  attachment  but  such  estate  only  as 
the  debtor  was  seized  of  at  the  time  of  entering  int<^)the 
allegation,  and  how  that  can  be  deiermined  without  a 
legal  pro-ceding  and  trial  will  })e  difficult  to  be  justly 
determnied. 

By  the  clause,  empowering  marshals  to  give  bills  of 
sale,  it  is  thereby  declared  that  such  l)ill  of  sale  given 
by  the  said  otlicer  or  marshal  and  duly  executed,  shall 
^  e  valid  to  all  in^Liiis  and  purposes  whatsoever,  to  con- 
vey any  the  land.;,  buildings,  or  negroes,  to  the  purchase 
er,  which,  1  conceive  cannot  be  anywise  vaU  I  accord- 
ing to  law,  tb.ere  being  no  record  or  legal  proceedin„i 
to  maintainor  warrant  any  siieh  sale  or  deed  to  the  pur- 
chaser to  n...ixc  him  a  legal  title  when  it  shall  come 
hereal'tcr  to  be  tiicd  in  a  court  of  Instiee  accordinir  to 
due  foiiii  of  law. 

My  Lord  Coke,  in  Iblio  oST  and  .")S8,  saith,  that  if  an 
act  is  impossible  and  iiKM)nvenient  to  be  observed,  it  is 
void,  as  in  the  case,  there  put,  of  the  connnon  seal  be- 
ing put  into  the  custodv  ot'  the  prior  and  four  of  the 
worthiest  and  disert'etest  of  the  coir  eni^  which  was  ob- 
st'r\ed   to  be  impo.s^ible  and  ine<nivenient  and  therelbre 


% 


OF  THE  COLONIAL  CONSTITCTIOiNS. 


381 


resolved  l)y  the  whole   ciiort    of  common  pleas  to  be ; 
nnd  Bracton  giveth  us  a  rule,  that   ha;  est  miictio  justa 
jaheihs  honesta  ct  prohihcn-s  coiifrai'ia,  so   as  every  law- 
must  have  three  quMties  :  first,    it   must  ho  j«*to  ;  sec- 
ondlj-,  j/d>(n,s'  hoiusla  ; third,  hy  jn'oldhem contraria. ;  and 
if  it  must  be    jn^ta,  it  nuist  have  five  properties  :    first, 
it   must  bo  posstihilifi  .;  secondly,   nece-smria  ;    thirdly, 
conrenie,i.s  ;  fourthly,  nmnife-Ha  ;  fifthly,  nv^loprivalo 
coiiiodo,  -y,'  cminiii  utllitati   -dita,   and    this  grounded 
i   upon  holy  writ,  legiim  eondite  rcsjmtadecemant,  vcc  qui 
coiidiutt  k(je-'i  iniqm^  et  m-ihente-'i  in  jiLstitiam  -cripm-- 
a/d  ;  and  how  many  of  these  requisites  . 'ire  contained  in 
the  present  act  in  dispute,  I  leave    to  any   considerate 
judge  to  deteimine,  and  I  take  i'.,  that  this  act  falls  un- 
der the  said  rules  of  being  impossible  and  inconvenient, 
for  the  enacting  persons  to  be  disseised  of  their  estates 
and  their  bodies  to  be  imprisoned  contrary  to  common 
law    of  t!ie  land    is  legally  inipossi])le  to  be  done,  and 
it  cannot  be  denied  but  that    it   is    very    inconvenient 
.gainst  common  justice  to  be  stripped  of  our  freedom, 
rights  and  properties,  without  any  judicial  hearing;  and 
what  is   the  highest  injustice  and  the  greatest  of  hard- 
ships, that  how  UDJust,  irregular    and   severe,    any  pro- 
ceedings are,  or    may  lie,  the  party  grieved  is  debarred 
of  any  remedy,  either  by  writ   of  error,    injuncti<m    of 
chancery,  appeal  to  the  government,  or  to  Her  Majesty 
licrsclf,    though  the  party  lie-  under  the  greatest  griev- 
ances whatsoc'vci-, 

Tlh'sr  things  ]  take  to  l»e  legalb-  iiupossii)le  and  what 
ui)  act  of  this  island  car.  lawfully  establish. 

Lastly,   il'the  act   itsi-lf  wa.s  passed  l)y   a    lawful    au- 
thority, whether  it  is  not  of  so  extraordinary   a    nature 

'  so  variant  iVoin  IIim-  \bnest\ 'siiislr      tions 


.aje.- 


and  con- 


K^       ! 


1 
f 


I 


882 


OPINIONS  OK  EMINENT  LAWYERS. 


tains  so  nitiny  insufficiences,  and  is  so  repugnant,  in 
most  of  its  matorial  i)arts,  of  the  laws  of  the  hind,  the 
rights  of  the  kingdom,  the  liberty  of  tlie  subject,  your 
Excellency's  power  and  authority,  and  Iler  Majesty's 
prerogative,  that  it  ought  not  to  be  put  into  effect  and 
have  any  force  till  Her  Majesty's  pleasure  and  approba- 
tion or  disapprobation  shall  be  made  kn-wn 

If  these,  my  present  thoughts  on  this,  may  be  any 
way  satisfactory  to  your  Excellency  and  serviceable  to 
the  island  and  Her  Majesty's  interest  I  shall  think  my- 
self hapoy  to  have  acquitted  myself  of  the  duty  incum- 
bent on  me,  and  pray  your  Excellency  would  be  pleased 
to  accept  of  it,  as  my  sincere  opinion,  according  to  the 
best  of  my  j.idgment. 

Will.  Rawlin. 

(10.)  2  he  object  ion-''!  of  the  Attorncii  Gctieial  Northty, 
P)  tlie  mnie  act  creating  poj^er  money. 

To  the  Right  Honorable  the  Lords  Commissioners  for 

Trade  and  Plantations. 

May  it  please  your  Lordships  ; 

In  o])edionoo  to  yo\ir  Lordships'  commands,  signified 
to  me  by  Mr.  Popple,  I  have  perused  and  considered  of 
an  act,  entitled  an  additional  act  to  the  act  entitled  an 
act  to  ascertain  the  paymt  it  of  such  bills  as  have  been 
issued,  pursuant  to  a  late  act  of  this  island,  entitled  an 
act  to  supply  the  want  of  cash,  and  to  establish  a  meth- 
od of  credit  for  persons  having  real  estates  in  this  i.s- 
land,  and  passed  in  Raroadoes,  the  12th  of  July  171G, 
as  also  the  said  original  act  ;  and  <i.)  hunihly  certify 
your  Lordshi[is,  th;it  the  said  additional  act  is  to  con- 
stitute a  new   commissioner   and    new    marshal  I  tiiose 


% 


OF  THE  COLONIAL  C(iN.,TITUTIONS. 


883 


mentioned  in  the  finst  act  l>oing  dead  or  reniovcJ,)  to 
execute  the  powers  in  the  original ;"  and  this  additional 
art  is  part  executed,  or  not  exeeut-d,  and  provides  sev- 
eral remedies,  where  monies  bid  on  sales  at  outcries, 
pursuant  to  the  first  act,  have  not  been  paid  ;  and  lay? 
several  penalties  on  such  bidders  not  paying  what  they 
shall  have  l)id  ;  and  empowers  a  person  to  bid  in  behalf 
of  the  government,  where  no  person  apj)ears  to  bid,  by 
which  I  apprehend  is  meant  a  real  bidder  ;  for  in  the 
oath  of  the  persons  empowered  to  bid,  he  swears  he 
will  not  bid,  but  where  no  other  person  will  bid,  or  un- 
less a  person  shall  endeavor  to  purchase  the  laws  at  an 
under  rate,  and  swears  he  will  not  exceed  in  such  bid- 
ding, two-thirds  or  what  he  shall,  in  his  conscience,  es- 
teem the  land  wor+h  ;  which  seems  to  be  a  penalty  on 
the  owner  for  keeping  away  lu'dders,  otherwise  I  do  not 
see  why  the  bidder  should  not  give  the  value  of  the  es- 
tate. 

And  the  said  additional  act  gives  several  powers  for 
the  better  executing  the  design  of  the  former  act,  which 
wa,,  to  discharge  the  debts  and  engagements  contracted 
by  reason  of  an  act,  entitled  an  act  to  supply  the  want 
of  cash  by  a  method  of  credit,  for  persons  having  real 
estate  in  this  island,  (  called  the  paper  act)  which 
was  repealed  l)y  her  late  Majesty  :  and  r  have  nu  ob- 
jection, in  p(.:iit  of  law,  against  the  said  a«lditional  act. 
There  is  therein  a  pretty  extraordniary  punishment  on 
persons  bidding  for  lauds  which  they  were  then  incapa- 
ble of  paying  for,  viz  :  imprisonment  for  a  year,  to  be 
set  in  the  pillory,  and  to  have  their  ears  cut  off;  but 
that  being  oidy  for  persons  \Aw  knew  their  own  inal)ili- 
tios,  I  hiive  no  ol)jection  thereto. 

Fjinw    NoRTHF.    , 

Deceml>er  28    1717, 


m 


r   .   f 


-If  • 


11 


[f 


!  U 

:   it 


384 


OPINIONS  OK  E.MINFNT  LAVVYEKS. 


(11.)    Thi   ohjrctiiin  of  the  sdiiic  J(iiv>i(  r  to  tui  of  Hav- 
huloex^  r.'.v  uHixasiiualile. 

To  the  Kif^lit  Hon.,  the    Louis  Coiiunis.sioiU'rs  for  Tr.do 
and  Pliintatioiis. 

Aray  it  plca.sc  your  Lord^lilp.''  ; 
In    (.'beclieiicc  to  your  lionlships'    or(I<'i-  of  refcri-nri', 
si^Miitiod    to    1110    hy    Mr.  Popplf,    1  liiivc  considrn'd  tlic 
follow! uic  acts  passed  at   an  asscmhly   of  Har'tadocs,  in 
Mandi  17(H-'J  and  April  iT<»2,  viz:   "an  act  for  the  fur- 
ther supply  111"  fire-arms  and  other  store's,  ^:c.,  dated  tli" 
I'Jth  of  March.  IJOl-li  ;'  "  an  act  to  secinv  the  ])eacea- 
hle  jiosscssiou  of  ne<;roes  and  other  slaves  to  the  inhalii- 
tjiT  ts  of  this  island,  an(i  to  prevent  and  punish   the  clan- 
destine and    illei^ral  detinue  of  them,   dated  iiie  L'Tth  of 
April,   1702  ;"    ^vhichla^v^I     coiu'cive,  are  ajireealile  to 
i.iw,  and  do  not  contain  any   thini;    orejudicial    to    Her 
Majesty's    prero'^^alive,    I'xcept    the    act    to  secui-(>    the 
peaoeahle  i)ossessien  of  neirrot's,   v*s:c,,  as  to  wiiitdi    I  ;na 
of  opinion,  that  th(ninh  many  part-^  of  ties  law  (which  is 
not  temporary  hut  perj>etual)  may  he  of  use  to  the  plan- 
ters in  Uarhadoes  ;  yet  that   part   of  it  whi<di    |>rohihits 
the  carry i:'.;r  ., way    white   st .  .ants  without    consent    of 
the   (nvners,  undei- till     ^lenalty  of  dui'  huuured  [joumls, 
and  ohlijics  mastt'rs  of  shii)s  to  sweai-  not  to  carr\  tlieiu 
away,  is  not  tit   to  hi'  a|>[M()\c.'  of:   for  that  (diildren  sto- 
len from  Knulandaud  caii'it'd  to   the    Harhadoes  cammt 
he  re(daimed  and  carried    away  at  tiie  instance  of  their 
p!iri,v;ts  ;  and  as  it   is    worded  (if  otlicrwise  fit)  it  i-  uu- 
n  'sci.ahle.  heinir.  if  any    pi-rson  sliall  di  ecth'  or  indi- 
rectly carry  off,  atteuuil,  or  cau^i"  to  he  carried   oil"  anv 
rt'hite  servant  without  knowled<!;(>  of  the  own(>r,  which 
a  man   may    innocently  do,    the  words  (knowing  siicli 


\ 


•^ 


OF  THE  COLONIAL    CONSTITUTIONS. 


385 


person  to  'jc  a  sorviint)  being  omitted  ;  and  therefore  I 
think  this  huv,  with  tlicse  clauses  iu  it,  not  lit  to  be 
approved. 

Edw.  Northey. 
Oct.  22,  1703. 


(12.)  The  irport  of  Mr.  We-^f,  in  famr  of  a  Jamaica 
art   upon  i/cticral  principles  nf  colonial  policy. 

To  the  Rij^ht  ITonorable   the   Lords   Commissioners    of 

Trade  and  Plantations. 
Mv  Lord.s  ; 

In  obedience  to  your  Lordships'  commands,  signified 
to  me  by  Mr.  Popple,  on  the  27th  of  June  1723,  I  have 
reconsidered  an  act  passed  in  the  island  of  Jamaica,  en- 
titled an  act  for  encouraging  the  s[)('cil_v  settling  of  the 
l)lautation,  commoi.ly  caiK  '  Peio  or  Pera  plantation, 
situate  at  Port  Morant.  in  i he  parish  of  St.  Thomas  in 
the  East,  in  this  island  ;  and  for  obliging  all  persons  en- 
titled to  tlie  equity  of  redemption  thereof  I,;  i.>deem 
the  same  by  a  prelixetl  time. 

5n  the  consideration  of  acts  passed  in  the  Amfn-ican 
colonies,  when  the  Governor,  council  and  as.s,  uibly  of 
any  province  take  it  I'pon  them,  in  the  preamble  of  an 
act,  to  recite  and  aver  a  matter  of  fact  transacted  with- 
in their  own  bounds,  and  to  which  no  objection  or  op- 
position !  Made,  I  apprehend  that  1  ought  to  t:'k:>  tlio,se 
facts  for  ted,  and  upon  that  foot    only    to    consider 

whether  an  act,  referred  to  me.  is  reasonable  to  be  pas,s- 
ed  into  law  or  nut. 

And  if  this  act  lie  considered  in  that  light,  it  .seems  to 
me  to  be  mucb  -stronger  than  the  common  foreclosure  of 
an  equity  of  i.Jon.ptii>n  upon  a  mortgage;  for  the  act 

otr 


I     III 

1  I 


386 


0P1.M().\S    OK     E.MIM!-,.\r     LAWVERS. 


I 


I      :% 


recites,    that   it  a|)pears    upon  record  in  the  ishmd  that 
the  e.>tatL>  in  que.-^tion  did  originally   belong  to  one  Sir 


Thomas  Lvnch,  and  that 


1682, 


agreed  for  the  sale  oi'  tl 


Smith,  ff 


the   year 
lis  estate  to    one    Joshua 


so  long  ago    a^ 


'or  tlie  sum  of  .COOilO  :   it  also  appears  up 


on  rec- 


ord thai  Smith  nev 


stead  thereof  u[>on  tlio  2'M    of  X 
veved   back  to  Sir  Tl 


ever   paid  the  purchase  moiu'V    but 


ui- 


ovcmbor.  I(IS2,  recon- 
lomas  Lvncli  hi-;  own  estate,  as  a 


security  for  the  said  sum  of  .CGOOO,  with  interest.       V 


on 


th 


lis  .'>niith  was  let  int  >  possession  of  the  estate. 


receive( 


and 
1  the 


enjoyed  the  same  until  the  year  l(]93,  and 

profits  of  it  to  a  greater  sum  than  the    purchase  nionc 

amounted  lo.      hi  tlie  yr-.u-  Icii}.  |>v  ,„)  invasi.m  ..f  tlu 


Freiudi.  this  estate  was  w 
hit 


both 


y   ruined    and  made  dc.«o 


e  ;  so  that  fi..m  that   time  to  thi-.  it  has  been  wholly 


unocciipie 


The  act    also    takes    notice,  (hat  this  mortgage,  that 


was  made  in  the   \eai-    liisi', 


an''  therefore  if  it 


a     vears  to  hv    iinsatislied. 


is  considered  that  the  legal  e-tat 


e  Wiis 


originally  in  Sir    Tl 


loma" 


I 


\  ncli. 


Ii.it   a 


II  tl 


le   claim  of 


Mint 


li  is  founded  upon  a  d.e.l  i>f  pundia  e,  for  wldcli 
lie  ne\er  paid  any  part  "f  )|,e  eonsideiaiion  mouev.  tli.il 
the  estate  is  m.w  desolate,  and  if  t..  this  is  added  the 
consideration  of  what  a  \ast  sum.CHHiHI  priiK'ipal  nioiiev 


with  interest    Irom    tlie 


ar    l(i.s2    to    tl 


lis    (ia\     iiiiist 


i'liioimt  uiilo  III  a  coiMitiy  where  cumiiiou  interest  has 
been  always.  I  l>elieve,  at  least  after  the  rate  of  eiiihtor 
t  11  per  cent  pei  annum,  I  think  it  v.-ry  obvious  that 
this  net  *Jiiidi  is  only  to  gi\e  ji  fimiiU  tl 
both  in  law  .oid  cipiiix 
much  stronger  llimi  tl 
tv  of  redemiit 


U'lr  own  estate 


aillK;!      I) 


lon-iilered 


but 


as 


le  coiiimoii  I  .reclo-ure  oi    an  eipii- 
ptioi)  ^  Mild  yet,  even  ill  that  .  ise.  if  a  iimrt- 
gugu  iH  very  old,  as  e.  g.    above    twenty  or  thirty  Ncars 


OF  THE  COLOMAI-  '.ONSTITUTIOXS. 


887 


fi-nm  the  execution,  and  no  interest  lias  been  paid  upon 
it.  I  apjirohond  tliat  the  court  <'f  chancery  would  not 
admit  a  niortujajror  to  redeem  atrainst  a  mort^-ao-cc  in 
possession,  hut  would  look  u])on  the  e(|nity  (,f  redemp- 
tion as  extinguished  by  the  antiquit\  of  the  debt  :  in  the 
present  case  the  demand  is  of  w'nDvv  forty  ycirs  stand- 
ing, and  the  efjuity  of  redemption,  (if any)  is  founded 
upon  so  unerpiitable  a  foot,  that  I  am  of  opini(m,  it  is 
jii<t  it  slimdd  be  foreclosed;  nor  do  I  think  it  an  objec- 
tion, that  the  case  of  infancy  is  not  excepted  ;  because, 
if  they  were  major,  a  court  of  eciuity  would  not  admit 
lliem  to  redeem  :  and.  therefore,  an  exception  in  their 
favor  woidd   be   to  no  purpos(\ 

But,  hov.i'vcr,  this  act  is  not  an  immediate  foreelo.'<ure 
of  the  e((uity  of  redemption  ;  but  time  is  jjiven  to  the 
representatives  of  Mr.  Smith,  until  the  odth  of  May 
172-"),  to  come  in  and  redeem  if  thc\  think  fit  ;  and, 
that  thc\  luiiiht,  it"  possible,  be  acrpiainted  with  this 
act,  a  jiublic  advi'rtisement  is  directed  to  be  made  in 
the  .Famaica  Courant.  and  that  yoin-  Lordships  may  see 
tb:i(  the  act  was  pursued  in  this  respei't,  |  linv(>  annex- 
ed a  Courant  to  my  report  wherein  thi-  ad\  crtisement 
wa>  made  lint,  tlii-  is  not  the  only  con-^jdriation  that 
induced  me  to  be  of  opinion  thai  (iiere  wa-;  no  objection 
to  this  :\r\  beiii-  p;iss<'d  int;i  law  It  i<  allowed  in  ill 
the  .\  iiu  ricau  colon 'cs  ii<  ;i  uiaxim  of  la  w,  that  i  title  to 
Ih"  po'^M— ;ion  of  land-  iiiiHt  neres>;iiil\  lie  •supported 
by  an  actual  cultnie  and  plant  iiii:,- (>f  it;  and  that  con- 
scipiently  the  iieLdect  of  the  one  will  extiimni-li  the 
otliei- 

liiis     lli'iiiili     IS    founded      in      'be     nilure     oj"     ihiu^.S' 

■''iii'c  if  I    ol)\  ion-  that  no  eo|on\   can  e\er  1m>  supported 
upon  any  other  foot  ;   and,  in   <(.nM  (luence  vl'  llii-.  1  bo- 


:  ■  f 


.,f 


ll: 


i     '  i  if  I 


l 


388 


OPINIONS  OF  EMINENT  LAWYERS. 


41 

I*  ^-- 

1' 


*    r 


*  '1 


lievo  it  has  l)oen  the  practice  in  every  one  of  the  prov- 
inces in  the  West  Indies,  when  the  patentees  ul'  haiids 
have  i'v.v  a  considerable  time  uei;lected  plantinir  of  th(  ir 
Kinds,  which  is  a  condition  in  hiw  » ither  e\p,'essed  or 
implied  annexed  to  their  title,  that  tlic  assemhly  of  such 
provinces  have  passed  acts  for  tlie  resumption  of  those 
grants,  in  order  to  enable  tlic  Ciown  to  uraiit  those 
lands  (fe  novo  to  otiier  ))ersons,  who  would  in  time  com- 
ply with  flic  condition  above  nu-ntioned  to  be  annexed 
to  their  estates. 

And  as  to  this  islauil  of  Jamaica.  I  find,  that  in  an 
act  pas.'^ed  in  the  year  I(i0(i  aad  confirmed  anro  lb"J9, 
and  entitled  •  an  act  for  tiie  more  speedy  collectinj^  His 
Majesty  piit  rents,  lim-s.  forfeitures  and  anuMcia- 
nu-nts,"  mere  is  r  clause,  by  wluch  it  is  enacted  that 
every  i>ei->o]i  not  inhabitintr  within  tlie  islands,  and  who 
was  possessed  of  hind  wliereon  no  settlement  hail  been 
made,  >!ioiild  Ibileit  the  suuie  u,ih-ss  tiiey  accounted  for 
tlie  arrears  ol  ipiit  reut-^  and  made  some  settlement  ii|)- 
on  their  land>  -.vithiii  two  \eais  after  passinfjf  the  act  : 
1  mention  this  only,  to  show  tintt  it  was  the  notion  of 
the  people  of  this  island  that  patentees  wt  re  ol.li<red  to 
plant  their  lands.  And  in  .iiiother  act  of  this  island, 
entitled  •ail  act  foi-  .vettiin^'  tiie  northeast  part  of  the 
islan(f  and  wbieh  ua>  eiit  tome  I'-,  \our  l,ord>liij)s 
to^'etbci  wiih  the  ael  now  'indi  r  consideration,  it  is 
(///A/-  ////;/)  eiiaclcd  ihal.i  \v\  s  lai^e  tract  of  land,  '-m* 
which  tlie  (piit  rents  iVopi  the  year  i'.tU  had  no  been 
paid,  siioiiid  be  absolutel\  \e-ted  in  His  Majestv  and 
it  is  also  eiiaeled  that  every  person  claiming- any  part 
of  the  Miiil  iamh,  allbiMiL-h  the  (piit  rent^  ha.d  been 
paid  if  lie  ilid  not  settle  the  ^.\\\u-  \Nitliiii  two  xear*  af- 
ter piuwing  the  act,  hi^  land  .should  l)e  ab.soiutelv  vested 


OF    THE    COLOMAL    CONSTITUTION! 


389 


in  liis  Majesty  ;  but    for    tlie   hctt 
this  piirticiilar,   1   beg  leave  to  reH 


the  la-t  clause  of  the  last  mentioned  act 


er    understandin;>^   of 
r    vour  Lordships  to 


d. 


the  pivaiable  of  this  act  is  very  full  as  to  what  1 
in.'utioned,  of  a  settlement  being  necessarv  to  s 
title  to  an  estate:  to  applv  this  ol 


ind.nK.reover, 

)efore 

ecure  a 

l)servati(in    to  the  act 


er  consideration,  your  Lordships  will  be  plea'>ed 
to    ,  bserve    that   the  reniarkal)le  period  of   time  v/hich 


now  uii( 

1 


they  l)utii  refer  to  is  the  Frenel 


in  the  year  1(JI)4  ;  and   it  is  recited   in  tl 


1  invasion  of   the  island 


tiie  present  act,  that,  from  that    time    to  tl 


le  preamble  to 


passing  of 


the  act.  the  lands  liave  been  wholly  ,|e     rte.l  ;  and  that 
durin-    all   that    time   no  quit  rents  Ikmc  Iteen  paid  for 


the  sni>e,  and  this  is   the  onlv   i 


easoii  assigned    for  the 


lorleitme  of  lands  in  the  other  act, 

I  would  also  ..'.serve  to  your  Li^rdships,  th.t    the   es- 
tate ill  (piestiou   :-<  part  of  tho-e  desert  lands  in  tl 


ish  ol 


•A\\\ 


t  Th 


le  par 


louias.  111   the  e  .>t  part  of  tlu-  island 


\\  bicli.  cniise(|uently,  by    virtue  of  (lie  act    I    last 
tinned  to  your  Lordships,  are  to  lie  foi  I'eited  unless  tl 


ant 


i 


men- 


wo  years  alter  <he    pHssi 


arc  settled   within  t 

«aid  act  ,   and.  therefore,  ) 

ai  I  IS  for  the  benefit  of  all  parties  ;   lur  if   the  b.nd 

lint  settled  within  the  said  tw( 


lev 


jiassing  of  the 
cannot  but  think  the  present 


s  are 


o  ye.ir<,  thev   will   be   for- 


feited In  the   Cn.wii,   and   both    will    lose    tl 


lem. 


That 


tlir  heirs  of  Mr.  Smith  will  mal 


\«'  a   settlement  (here  is 


III)  rea-dii  to  imagine  aft^'r  so  Imig  a  dt 
It    be  M'pposed  that  the  re|)re.Miital  ives   ol 
l-.v  lib     will    lay    out    tlu 
this  kiinl  lor  their 


ictiuii.  nor  can 


Tl 


lomaH 

ir  mone\   u  illi'iil  some  act    of 

security;  ami  it  i^  nbsci\able,  iliat  in 


th 


'•^aii  the  time  givtii  to  the  Smiths  to  rede.-m  d 


ilclciiiii  ,ie 


ill 


llie    \ear 


(-1,     Uli 


li,\   til.' g.iMM'iiuieiii    tor    making  -Mttlemeuts 


loeN  not 


•  •re.is  the  lime  given 


UDon 


poll  puiii 


''11 


i^;f 


i- 


i^ 


(  ;  ■• 


',  I 


'ft 


390 


OPINIONS    OF  EMINENT    LAWYERS. 


:    WgHtWl- 


of  tbrtV ".11110,  expires  in  the  year  1724,  so  that  the 
Smiths  have  for  almost  a  whole  year  the  option  wheth- 
er they  will  or  will  not  take  in  such  improvements  as 
must  be  made  within  the  said  two  years. 

I  shall  not  t;'oiible  vour  Lordships  any  further  upon 
this  occasion  :  the  consideration  of  these  particulars, 
which  appear  upon  the  face  of  the  records  themselves, 
did  formerly,  and  do  still,  oblige  me  to  be  of  opinion, 
that  there  is  no  objection  to  this  act  being  })assed  into 
law. 

Rich.    West. 
July   11.  1723. 

(13.)     Till-    Attonii  ii-(t(Ih  ml,  Nin-thcifs,  nJijevtion   fo 
ii((i'/Hf(/otfi  (H'f'i.  a-s  HiiridsofHiliIe  and  nuii/sf. 
To  the  Right    Honorable    the  Lords    Commissioners  for 

Trade  and  Plantations. 

May  it  please  your  Lordships; 

In  obedience  to  your  Lordships'  commands,  signified 
to  me  l)y  Mr.  Po|)p1.',  I  have  c  Misidered  of  the  several 
laws  of  IJarbadoes.  mentioned  in  the  printed  book  of 
laws  for  that  island,  therein  numltered  41.  42.  108,  145. 
The  design  of  whicii  acts  being  fo  Mscerfain  the  fees  of 
the  several  officers  of  that  island  concerned  therein,  and 
to  oblige  them  to  hang  up  tables  of  those  'ees  in  their 
respective  offices  i\nd  courts  wherein  thev  exc'cute  their 
employments,  thereby  tn  prevent  extortion  and  (^])pres- 
sion  there,  if  ihe  fee-;  be  reasoiial>le  (of  which  1  am  i;ot 
a  judge.)  I  have  no  objection  against  the  design  of  the 
said  acts,  but  I  am  of  <»pinion  that  one  of  the  remcdjeM 
appointed  by  ihc  s.iid  act-<  ioi  punisliing  the  oflenders 
against  the  s;\id  aet^.  i-;  unr(>asonable  and  ;iiiju»:t.  espe- 
cially as  to  the  st'i  n-tary.  provost-marshal,  and  the  reg- 
ister in  ;;!>ancery  of  tiiat  island,  who  held  their  offices 


OK  THE  COLONIAL  CONSTITUTIONS. 


391 


by  virtue  of  letter,  patent  of  IIi«  Majesty  or  his  p.-ede- 
cessor  ;  for  hy  the  act  No.  41,  it  ,s  provided  that  no  of- 
ficer wliatsoover  belonsinn:  to  that  i«hi..,d,  &c.  hy  him- 
self,   deputy,    clerk,   or  servant,  .hall,  after  publication 
thereot,    receive  or  take  any  other  fee  or  fees  for  ony 
busme.ss  nanied  therein,  than  is  for  the  same  in  that  act 
expressed,  under  penalty  of  foHlitinj,  or  losing  his  or 
then-  office  or  offices,   and    lying   i„  the    common   gaol 
w.thout  ,.a,l  or  mainprise  the    space  of  ,,„e  month,  the 
.ame  to  he  nn.nediately  executed  upon  him  or  them,  up- 
on  his  or  then-  .-onviction,  upon  the  o.th  of  one  or  more 
witnesses,  or  <.ther  sufficient  proof  before  the  Governor 
oranyjusticeof  thcpeace:  which  off-ence,   I  am  hum- 
bly of  opinion,  ought  to  be  determined  by  a  trial  in  the 
courts  of  law,  where  the  officer  i.u-  defend  himself  and 
not  by  the  Governor  cany  .justice  of   the    peace    upon 
the  oath  of  one  witness,  as  it  may  be  b.  that  law      The 
net,  No.  42,  depends  upon,  and  i.  only  for  the  better  ex- 
ecution of  that  act. 

Against  (he  act  No.  l(,8  there  is  the  .same  objection  ; 
'■"••  >V  'l.at  act,  the  officers  taking  fees  contrary  to  the 
establishment  therein,  .u-e  to  lose  their  office-s",  and  Ik. 
*'""""'^'^"^<"  tb^'  <-m.nonga..I,  without  bail  or  main- 
P'-./A',  lor  the  space  of  three  months,  and  the  same  to  be 
"""".diateiye.vecuteduponb.mor  ,hem,  upon  his  or 
"H'.r  conviction,  by  the  oaths  ..f  two  ,.,..di|,l,  .vitne.s.ses 

^"•••""li-i<.uoftiie  party  accused,  before   the  (iovernor' 
"I  any  jiistu'c  ..f  the  peace. 

Against    thi- act  N<.,    N-'. 'Jieiv  i^  tl ■     .• 

...  '^  '    M.  I.    1,-  (he  ,saine  <..))*'ction, 

or    hereby  .t  ,s  provided  that   the    secretary    of  the  is. 

;""J-  '"•  J"s  deputy  or   deputies,    taking  fWs  contrary  t<, 

l':tt  act,  shell  he  pn.<-eeded  agamst  as  exU,rtio.,ers,  "and 

hr  ever  after  be  made  incapable  of  -.fin.,  jp  ===...    ...... 


i 


Uffl 


i    (    !    ! 


ffy 


I 


I 


392 


OPINIONS    OK  KMINKNT  LAWYRRS. 


II  ■ 


3j 

% 

I 


t  iil 


office  or  MTiy  oflico  ol"  j)iil)lic  trust  whiitsoi'vor  within 
that  islimd,  and  tlic  sumu'  to  bo  execMitod  upon  him  or 
thi'iii,  upon  his  or  (heir  conviction,  hy  his  or  their  con- 
fession, (ir  by  tiu'oiith  ofoiie  or  more  witnesses.  In'forc 
the  (lovernor  or  any  two  of  His  Majesty's  justices  of  the 
peace  fiu're  :  wiierelbre.  I  am  humhly  of  opinion  that 
the  sail!  acts,  with  the  said  jxjwers,  are  not  (it  to  re- 
ceivt'  His  Majesty's  approbation,  if  (liev  have  not  al- 
ready had  (lie  approbation  of  the  Crown, 


Enw.    NoinnF.Y. 


December    Id,   171' 


(14.)    Mr.    IVtsf's  o'ljrcff'in  (;i  (Ol    (ic*  of  flu   M((iih'  .!.<- 
■seinhJif.  for  fic(  ir^i'tij  hiiriirm  upon  the  -saiiK  prim  ipf  . 
To  tlu<    Uiiilit  Honorable  the  Lords   (Commissioners    of 
Trade  and  I'lantations. 


M 


V  l.ord 


In  ohodicnce  to  yom-  F.,ordships'  connnands,  !  have 
perused  a  law  passed  in  the  general  assendtly  in  the  in- 
land of  IVirbudoes  t'n;'tled  "an  act  t)  empower  licentiate 
lawyers  to  prai'tis(>  asbjirristers  iu  the  said  i-l;nid  IT1"»," 
by  which  law  it  is  enacted  that  every  person  tli.it  is.  oi- 
shall  be  for  the  future,  licensed  under  the  hand  and  seal 
of  the  (lovt'ruor  of  tiu"  said  island,  shall  be  autliori/cd  to 
])ractise  the  l;nv  a--  fully  as  if  he  were  a  rcLiular  bar- 
rister. 

I  The  eoiuiuit  lec  ol'  corresj)ondence  .'f  the  said  island 
do.  in  their  letter  to  tnei.'  ajjents  in  Knjxland  ■■><  re;i^ons 
for  pas>iuLi'  the  -aid  law.  urge  that  it  had  been  llie  cus- 
tom of  the  said  i-iau<l  to  pern\it  licentiato  to  prai  lise  a< 
lawyt'rs  und  that  <U(di  custom  had  ne\erbei'u  atttiidcd 
b\-  any  e\  il  eou-cipiences. 

'_'    Thai  the  s.iid   custom   had.   in   their  opinion.  1 


leeii 


atiui-oved  ol' l>\    the   Kini's  inid  (Jneens  of  (Jreat    Miitiiii! 


OF  THE  COLONIAL  roXSTITUTIONS. 


393 


sinro  thoCnwnh:-,.^  fmiuentlv  appointed  such  licen- 
tiates to  actasattornies  and  solicitors-general  in  the  said 
island. 

o.  The.  nrjre,  that  the  said  island  was  liahle  to  seve- 
'■>!  :iie..Mvr,dences.  from  tiieir  not  having  a  sufiicient 
Minnher  of  harrister.s  to  transact  the  law  business  of  the 
siiid  island. 

I  liave  also,  ,„y  Lords,  heen  attended  by  Mr.   Walker, 
;>nd  other  .-entlemen,  who  approved  of  the  .said  acts  be- 
H.-  pas.scd  into  alaw^  wh.,,  in  answer  to  the  before-nien- 
tinned  reasons  (l.)„f  the  connnittee  of  correspondence 
"1"1    .•ilh-e    that    the    usage  of  licentiates,  practising  a8 
linvyrrs,  did,  a'  ap])ears  from  the  preamble   to  the  act 
:in.>e  from  necessity,  and  there  being  no  such  necessity,' 
s<.  much  as  iiretended  to  be,    now  existing,  there  can  be 
no  reason  .b-awn  from  theiu-e    to  di..courage  the  profes- 
sion ol'the  law  (.so  much  as  it   wouhl  be)  by  the  perpet^ 
ual  establishment  of  the  ,siid  custom  in  pa.ssing  this  act. 
(li.)  That    though,    at  the  (irst  .settling  in  the  .said  is- 
laud,  the  affairs  of  the   Crown  were  left  to  the  manage- 
I'lent  of  li.e.itiates,  it  was  ,,u  mg  to  the  necessity  be 
ineutione.1,  but  that  ever  since   the    said   necessity  has 
l»een  removed  (which  is  now  two  and  thirty  vears^ago,) 
tiie  Crown  hasahvays,  l^y  patent,  appointed  regular  bar- 
risters to  be  atlornies-gcneral  in  that  island. 

(•!.)  And  (IN  to  the  third  rea.son,  they  urge,  that  their 
lint  liaving  a  sufficient  nimibcr  of  barristers  among  them 
i^  owing  to  the  permitting  licentiates  to  pracli.^'  ...^  bar- 
risters. 

I  beg  leave,  therefore,  to   observe    toNom-  Lord.ships, 
ili.K^f-  tlieigm.rance  of   ti„.  |5,i|,sb  law   -Iocs  naturallv 
(••'id    to  weaken  that  connexion  and  union  which  e  glit 
tu  be  kept  up  between  the  motb-.>r  ..,mut.•^    ...,-i  fiw.  .?..i 
51  • 


I 


'  :  i 


I  ill 


Ml 

. 

:  i 

i 

''^ 

■ 

f  ■ 

i  M 


*f.« 


Is 


■  I  -^ 


•:-i 


394 


Ol'I.MDNS   OK   EMINENT  LAWYERS. 


ony,  tliorefort.'  1  ciinnot  but  think  this  hiw  may  be  at- 
toiub'd  with  W'ly  ill  consoqiiciu-es  :  siiic*.'  it  is  ()l)vious 
that  English  j^jfiitliMiien,  who  air  ivgiilai'ly  called  to  the 
bar,  will  have  but  little  eneouiiigeineut  to  venture 
abroad,  when  they  see  a  })eri)etual  establishment  of  li- 
centiates in  that  island  ;  .i'mI  which  niaj  probably  cre- 
ate such  a  prei'edent  as  may  induce  all  the  other  colo- 
nies in  the  West  Indies  tit  a[)i)ly  lor  and  obtain  the  like 
law,  wdiich,  as  it  will  leave  them  little  or  no  reas(Hi  to 
send  their  sons  to  1k'  educated  here,  in  Kuj^hmd,  will 
naturally  alii-nate  them  I'rom  the  knowled^^e  and  love 
of  the  laws  of  (neat  Britain. 

1  nnist  further  take  notice,  that  there  are  no  qualifica- 


tions whatsoever  relatiny;  either  tooiiths  or  lel 


igion  pre- 


Hcribed  ity  the  act.  in  order  to  obtain  such  license  to 
practise  the  law,  but  is  wholly  lel't  to  the  arbitrary  dis- 
position of  the  (lovernor,  \\ho  in  consequence  of  it  is  en- 
abled to  permit  even  his  footman  or   hi.s  black    to  prac- 


tise as  a  barrister  ;  and  since  the  (Jovernor  has  no  par- 
ticular p  )wcr,  by  his  instructions,  to  grant  such  licenses. 
1  believe  your  Lordships  will  think  it  more  for  the  hon- 


in  case  there  should  be  any 


or  of  the  prerogative,   that 
deficiency  of  Iwrristers  in  the  island,  they  should  be  ob- 
liged to  apply  for  licenses  at  home. 

However,  1  cannot  but  own  that  it  would  be  a  hard- 
ship to  take  away  the  privilege'  <if  practising  from  those 
win)  have  applied  tiiemselves  to  the  law   in  that  island, 

Olid  jiifi ,  licensed;  therefore, 
that    the    law 


ami  have  alreadv    been,   !> 


tinion 


upon  tlu"  whole  matter.  I  am  of   oj 
slionhl   not  be  wholly  rt'iected,  because  (hat   might  per- 
haps depiive    the    present    licentiates  ot    tin-   benefit  of 


prai'tisuig 


but 


ordered    to   lu' 


ii\ 


aiK 


1    I    h 


lope    \(>ur 


Lord.shi|).s  will    think  propter   to  write   to  the  Governor 


P-S3  3 


OP  THE  COLONIAL  COXSTITUTIONS. 


395 


1^1 


not  to  grant  any  such  licenses  for  the  future,  but  I  sub- 
mit the  whole  to  jour  Lordships. 

T        o-    i^ir,  Rich.  West. 

June  2.J,  1718. 

(ly.)  J/y.  Tr.«-^'s  ohjfrtlons  to  an  act  of  he  S mth-Car- 
oinm  Assnuhly,  h,rorporati,uj  Charhstown,  vpon  a  new 
(jnncipJe. 

To  the    Right  Honorable,  the  Lords   Commissioners  of 

Trade  and  Plantations. 
My  Lords  ; 

In  obedience  to  your  Lordships'  commands,  I  have 
pen.se.l  an.l  considered  an  act,  passed  in  Carolina,  en- 
titled  'an  act  for  the  good  government  of  Charlestown  " 
by  which  act  Charlestown  is  erected  into  acitv,  and  the 
^mvernmentofit.assuch,  islodgedin  a  mayor,  six  al- 
dermen, twelve  coniin.m  councilmen,and  a  recorder  be- 
Mdes  whom  there  are  several  othe.  subordinate  officers 
appointed. 

■ml,  for  the  better  administration  of  justice  within 
the  new  erected  city,  tl.o  maycr,  recorder,  and  four  al- 
dermen, have  power  to  determine  petit  larcenies  &c  ac 
c-nni.ngto  the  laws  of  Great  Britain;  and  are  also  em- 
p.nvered  and  ooligva  to  hold,  every  two  numths.  a  court 
*'l  '•'>'""">n  pkas,  to  determine  all  actions  not  exceeding 
I'tty  pounds  sterling;  and  also  to  hoM  plea  in  eject- 
ment lor  lands  within  the  said  city,  and  to  determine 
tlie  snmi'. 

There  are  also  a  great  many  other  privileges  and 
P"^vers  ,n  the  bill  that  are  usuallv  granted  to  new  erec- 
«*'<'<'"n">'-^itions,  t.,  the  greatest  part  ...  which  I  have  no 
"'».!'■«■'"•"!"  their  being  ronlirmed;  but  vet  there  are 
t«-oortbreep,Kiruh,rsin  the  bill,  which  to  me  s.vm 
altogether  unrea.sonable  and  contrurv  to    »!...   ,..=.fi.......-i  .s 


\  ill 


f  i 


=  "a| 


^11 


1 


396 


OPIMONS    OF    EMINENT    LAWYERS. 


establishing   the    government  of  cities   in   Englan.'.. 

1st.  It  is  usual,  in  England,  and  most  equitable,  that 
the  offices,  at  least  tlie  mayor,  and  comii  >n  Cduncilmen, 
should  be  anniral  ;  but  in  tl)is  new  erected  cit_v,  though 
indeed  there  is  a  rotation  ;is  to  the  office  of  mayor 
among  the  persons  first  nominated  in  this  act,  yet  the 
persons  so  named  are  to  be  possessed  of  their  several 
offices  during  their  lives, 

2d.  Whenever,  bv  death  or  any  other  means,  a  vacan- 
cy happens  in  any  of  tiie  said  offices  of  mayor,  aldermen, 
or  common  council,  the  freemen  at  large  of  the  city  are 
totally  excluded  froii.  having  any  share  in  the  election 
of  a  successor ;  but  the  mayor,  aldermen  and  common 
councilmen,  for  the  time  being,  are  empowered  from 
time  to  time  to  fill  up  every  vacancy  th-'t  shall  happen 
among  them  with  such  persons  only  as  tl  ey  themselves 
shall  think  proper. 

3d.  The  i  ayor,  aldermen  and  common  council  are  al- 
so, by  this  act,  invested  with  the  sole  power  of  making 
sue'  by-laws  and  o-dinances  as  they  shall  think  proper, 
which  are  to  be  lunding  to  all  the  fieemen  within  the 
city. 

If  the  act,  therefore,  is  considered  in  this  light,  that 
the  nineteen  gentlemen  who  are  nominated  in  the  act  to 
be  first  mayor,  aldermen  and  common  council,  arc  pos- 
sessed of  their  offices  for  life,  hiivj  the  sole  power  of 
choosing  their  own  successors,  and  the  sole  power  of 
making  such  l)y-hiws  as  tiiey  sliall  think  fit,  the  gov- 
ernment ^established  l)y  this  act  is  the  completest  oligar- 
chy that  ever  was  seen  ;  .since  the  entire  government 
of  this  city  and  of  all  tiie  persons  who  shall  ever  dwell 
in  it,  seems  to  l)e  vested  in  thi'-e  nineteen  gentlemen, 
theii"  heirs,  and  assigns,  forever. 


'?>»if 


OF  THE  COLONIAL    CONSTITUTIONS. 


397 


But  besules  What  I  have  already  meuti,.,K-d    to  vour 
Lordships,  there  i^- another  ol.jeoti.m  to    this   act  which 
Kis  b.eu  repre.sented  to  me  l,y  Mr.  Shelton  on    the   be- 
halt  ot  the  major  part  of  the  inhabitants  of  the  parish  of 
Charlestowu,  which  :«,    that    this  act    of  incorporation 
was  passed  against  tht  r  con.sents  an.l  contl•ar^-  to  their 
i.iclmations.  and  in  order  to  justify  what  he  alHrmed   he 
loft  with  me  the  copy  of  a  petition    to  the   assemblv  of 
the  province  of  Carolina,  of  whiMi  he  .lid.  at  the  .s^me 
tune,  produce  the  original,  signed  bv  no   less   than    one 
hundred    and    thirteen  of  the  inhabitants  of  the  town 
which   as  I  am  informed,   does   nut   contain   in  it  quite 
hree  hundred  persons,  complaining  nf  this  art  (then  a 
bdl    depending    in   their   hou.se,)   and    pravmgthat   it 
might  not  pass  into  law. 

How  far  the  allegations  of  Mr.  Shelton  arc  true  ornot  I 
c  nnotpretend  to  say,  but  if,  upon  in<p,ir^•  tluM  shall  ap- 
pear to  be  well  r  ,ded,  for  that  and  thj  otliei-  reasons  I 
have  before-mentioned,  lam  of  opinion,  tliat  this  act  ia 
not  proper  to  be  passed  into  law. 
April  11,  1723.  i>         „. 

KiCH.    W  EST. 

(3.)  y  /..  opinion  of  th,  Attorney  and  SoUcitor-Gene- 
ml.  \or],e  and  Weanj,  on  the  unrircum.pd  mnh  of 
■'»,t>uuuuj  hws,  used  hy  the  Jamaica  A  ..onhj,, 

To    the    Right  Honorable    the  Lords  Commissioners  of 
I  nide  and  Plantations. 
May  it  plea,^„  your  Lordships 

I"  "'-;-»ce  to,  our  Lordships- o,m.„ands.sigmlied  to 
us  by  let  er  from  Mr.  Popple,  transmitting  to  us  oopi.,s 

';"wo  bills   sent  ove.  from    Jan.aica,  the    one    entitled 

"n  act  for  granting  a  revenue  t..  ilis  Majcstv        .  heirs 

;"..!  s:,..o.ssors,  tbr  the  support  o|'  the  government  of  this 


islMu.l,  and  perpetuating  the    a<'ts    and  bnvs   tl 


lercol   as 


^m 


■  i  Mi 


'ft 


=uiiiu  auu  ai     uaed  ;■-  and  the  other,  euUtlcd 


4  I 


1 


398 


OPINIONS  OF  EMINENT  LAWVER3. 


"an  act  to  augmcMit  the  salary  of  his  Grace  the  Duke  of 
Portland  during  his  residence  in  this  island  as  Gover- 
nor ;"  together  with  an  extract  of  his  Grace  the  Duke 
of  Portland's  letter,  and  copies  of  other  papers  upon  this 
subject,  and  requiring  us  to  let  your  I. ordsiiips  know 
whether  we  liave  anv  objection  to  the  said  bills  in  point 
of  law  :  we  have  considered  the  said  copies  of  bills,  and 
other  papers  referred  to  us,  and  herewith  returned,  and 
docertif^^-  your  Lcrdshi[)s,  that  the  principal  considera- 
tions arising  upon  these  two  bills,  appear  to  us'  to  be 
rather  matters  of  prudence  and  policy,  than  law,  and, 
therefore,  not  to  be  strictly  within  your  Lordships"  di- 
rection to  us. 

As  to  the  revenue  bill,  wc  cannot  but  observe  to  your 
Lordships,  that  though  we  do  not  find  any  specief  of 
commodities  charged  with  imposts  by  this  bill  which 
were  not  charged  by  the  former  revenue  act,  yet  the 
imposts  upon  several  species  are  greatly  increased,  and 
particularly  upon  certai-  liquors  '"iported  from  Europe. 
The  duties  upon  sugars  and  indigo  are  much  lessened 
^  ihis  bill,  particularly  that  upon  indigo,  irom  Is.  6d. 
to  3d.  per  pound.  We  observe  by  the  copy  of  his  Grace 
the  Duke  of  Portland's  ^  •  rie-si,  sent  down  to  us,  that  it 
was  a  matter  of  doubt,  in  Jamaica,  whether  this  reduc- 
tion of  those  duties  wa.s  consistent  with  his  Grace's  .'2d 
instruction  ;  but  upon  consideiation  '>f  that  instruction, 
this  reduction  does  not  appear  to  us  to  be  contrary  to 
the  terms  of  it,  because  it  cannot  take  olf,  or  in  iiny 
wise  affect  the  general  prohibition  of  trade  with  tlie  sub- 
jects of  Fi  ince,  for  the  duty  can  take  place  only  upon 
indigo  lawfully  imported,  and  not  such  as  is  prohihitcil. 
J3ut  if  tlie  trade  of  that  conHundity  lie  cliicllv  in  the 
hands  of  the  French,  and,    notwithstanding  the    ucnerai 

nroiliblf mil   of  fl';i(]i>    'uv*;  lii>t>ii   0!\yr\ni\  jtnwitli    tin  ;.i    in   a 


OP  THE  COLONIAL  CONSTITrTIONS. 


399 


clandestine  manner  (which  the  Duke  of  Purtland's  let- 
ter imports,)  whether  this  reduction  of  the  duty  will  in 
conseciuence  tend  to  encounige    that  clandestine  trade, 
or  rather  to  increase  the  open  importation  of  indigo  in  si 
lawful  way,  is   what  we    are  not  sumcientlv  enabled  to 
judge  of,  but  is  proper  for  your  Lordships' consideration. 
It  IS  further  to  be  observed  upon  this    bill,  that   the 
revenue  given  by  it  is  made  perp^'  ,al,  and  the  laws  con- 
tniued  by  it  are  continued  for  ever,  which  makes  it  the 
more  necessary  to  consider  whether   the  provision  be 
such  as  will  bo  s       -ient  to  answer  the  exigencies  of  the 
government ;  for  if  it  should  happen  in  the  event  not  to 
prove  so,  the  people  of  the  island  having  their  laws  se- 
cured to  them  i  .  ,  erpetuity,  may  think  themselves  in  a 
better  condition  to  withstand  even  reasonable  demands 
which  may  hereafter  be  made  by  the  government,  to  sup- 
ply  any  deficiencies  on  that  head,  than  thev  have  hith- 
erto  been  whilst  their  laws  were  temporarv  and  preca- 
rious ;  and  this  seems  to  us  to  be  of  the  greater  weight, 
by  reas...  o^  the  unusual  meth.Ki  taken  to  annex  to  this 
bdl  an  e..,.-;-iate  of  the  annual  expenses   of  His  Majei.- 
ty's  government  in    this   island,  by  way  of  debtor  and 
creditor,  which  by  reference  is  made  a  part  of  the   bill 
itself  and  is  computed  to  amount  to  £8000  per  annum, 
and  the  clause  whereby    the   assembly    have    engaged 
themselves  U)  sHpply  deficiencies,  is  only  upon  the   con- 
tingency of  this  revenue  fvlling  short  of  that  sum,  and 
to  make  that  good. 

The  clause  concerning  the  l-iws  of  the  island  and  their 

•untinuance  is  penned  in  a  manner   much   less  liable  to 

exception    than  that    sent    over    the  last  year,  though 

not  s..  free  •rom  objection  as  might   have  been. 

The  ellect  olit  is,  that  this  act  and  all  acts  and  laws 


i 


P 


r    ! 


i  |f 


•  -  ri 


^1 


400 


OPINIONS  OF  EMINENT  LAWYERS. 


m 


as  they  now  f^tand  and  are  accepted  and  used  in  Ja- 
maica, ar'j  tliei  l)y  declared  to  be  and  remain  in  force 
for  ever,  (except  the  preseiit  revenue  act,  and  four  acts 
of  asfienil)ly  lately  pas.'^ed.  which  are  particuhirly  spec- 
ified.) 

This   chuiM'    concerns   two    kind.s  of  hiw.s  ;    1st.  such 

laws  of  England  a.s  have  Ijeen  accepted  and  used  in  Ja- 
maica ;  2d.  acts  of  asseinl)ly  of  the  island:  Ave  ajjpre- 
hend  from  tlic  words  of  thi.s  clause,  and  from  tiie  coun- 
cils  answer  to  the  Duke  of  Portland's  4th  and  oth  (///  <- 
;7<-'?,  that  the  first  sort  of  laws  are  what  the  asseiuljly 
had  now  especially  in  view, 

IJul  as  it  is  coidined  to  acts  and  laws  as  they  stand 
acce|itt'd  and  ii~cd  in  the  island,  we  conceive  no  incon- 
venienct-  can  follow  from  it,  bec^ause  no  other  part  of 
the  i.iw  of  Knuland  will  })e  established  thert-by,  but 
such  as  by  acceptance  and  usage  in  Jamaica  hasalirady 
(gained  the  Ibrce  of  a  law  of  that  island,  and  such  would 
continue  to  be  the  laws  there  without  tiie  assistance  ol 
this  bill. 

Tiie  greatest  objection  to  this  clause  concerns  the  acts 
ofas.sembly  of  the  island  ;  for  as  it  is  now  penned,  all 
their  tempoiar\  acts  of  r.ssenihly  which  arc  at  present 
in  force  will  'im-  made  perpetual  (except  the  four,  which 
are  particulai  ly  excepted.)  and  it  can  liardly  ha|ipen  but 
some  of  their  temporary  laws  are  not  fit  4,o  be  continued 
for  f\ci'.  at  least  it  seems  fit.  that  they  should  lie  tiilly 
looked  into  and  considered,  before  tlu-v  receive  such  an 
estal)li>luiicnt. 

As  to  the  1,111  lor  augmenting  the  Duke  of  l'orllaiitr.s 
wilary,  we  have  no  oiijcction,  in  pouit  of  law ,  aL',aiiist  the 


^ame 


Jid\  C,  1725. 


IV    Vonhi 


OF  THE  COLONIAL  CONSTITUTIONS. 


401 


(IT.)  The  ^oU<ifo,-(n:nem/Eyrt.9  oljjrr<tion.<>  fo  an  act 
of  ih-  Jamaica  A.s.mnhh,.for  it,  vnreamnahlene.s.'^. 
To  tlio  Right  Hon.    the  Lord.s  Cununi.s,.ionors  of  Trade 
and  Plantations. 

My  Lords'; 
In  ohedionco  to  yoin- Lordship  .'  rommands,  signified 
In    Mr.  Popplo,   in    the  letter  hereunto  annexed,  I  have 
•M.n.^idered    of  an  act    pa.^sed  at    Jamaica,  entitled  "an 
a't  lor    regulating  fees,"    and    i-arti  ■ularlv    of  a  elau,^ 
wh.eh  ohligo.  lawyer.,  to  t;,ke  retaining  "fe^-s   under   a 
!>-n;.lty.  andufone  other  clause  f  .r  qualifving  of  wri- 
ting .lerks  ;  and  having  heard  Mr.  Baher, 'on  behalf  of 
liinisclf  of  M,-.  Compier.  receiver-general  of  that  island, 
an.l  of  Mr.  Winter,  clerk  or  register  of  the  court  of  chan- 
<vry  th.M-e.  against  the  saM  act  ;  and  colonel  Llovd  and 
.Mr.  .Vyhnec.  .uc  nithe  incinl..'rs  „f  the  assenihlv    if  Ja- 
ni.iica.  f.r  it  ;  and  having  coni))ared  this  act  with  an  act 
which  pass,.d  in  Jamaica  l.y  tlie  snnu'    title   in  1684:   \ 
u.  wt  hund.ly  certify  your  Lordships,  that    in   n.v  huin- 
I.I.-  opinion  the  ollicers  h:,ve  no  reason  to  complain,    for 
this  uct  is  more  f  .r  their  fair  proHt  and  advantage. than 
the   former:  hut  the  dausrs    which    ohlig,.    lawyers  to 
tMkc  ndaining  fees  -.n  l.-r  a  penalty,  and   restrain  plain- 
tHMVom  retaining  more  counsel  than  one,    till  ten  day.s 
•iil^'r  declaration  he  ,lcli^..,•cd  or  as„hpa>na  in  the  cau«e 
scrv.Ml  on,  the  d-fendant,  and   th.-  clause  vvhi.di  requires 
•■'•'■fain  qualifications    m   writing-clerk^    ^cm    to  me  to 
i'c   \.-ry  unreasonahle,  and    t'.crc   1-  nothing    in  iur  law 
"'n"'"'li<''-<'!'  Kutxlan.!  which    favors    any  .such    regnla- 
'"""       '  ''■'^''  ""  ohjcction   to  any  other  part  ofthe  act, 
•"il  Iliink  It   r.-as..na}jle  and  f.r  Hh   gn,,d  ..ft},.'  island. 

Ma^    l-J,  1710  "•^""•'• 

d2 


'  i 


If! 


' 


I 


402 


OPINIONS  OF  EMINENT  LAWYEHS, 


r^g*=S*'!a^ 


(18.)     Th'  oljtcthn.il  of  the  Atto'neij  and  So'citor- 
G  neral,  Jiydiraiid  JJitrray,  to  a  law  of  Xovth  Carolina, 
as  btiii'i  contrarii  to  ri-a-<iiii,  uicoitxi'fknt   icith  the  lawi^ 
and  pf(ji((liii<d  t  >  thi^i  kinijdoin. 
Tu  tlie  Right   Uononibk   the  Lords  Commissioners  for 

Trade  and  Plantations. 

Mav  it  i)lease  voiir  Lordships  ; 
,  In  [)uisuance  of  your  Lordships'  desire,  signified  to 
us  by  Mr.  Hill,  in  his  hotter  of  the  '2d  of  April  last,  rep- 
resontiniT  that  your^Lirdships  having  innler  your  con- 
sideration a  nieuKirial  of  several  British  n  erehauts, 
praying  the  r'-peal  of  an  act  parsed  in  the  province  of 
North  Carolina  in  the  yeai-  171").  l)y  the  pniprietors  of 
tlie  said  [idxiiiee.  cnliih'd  -an  act  concerning  attorniees 
from  liircign  |t;ut<,  and  for  giving  prinrit\  t(i  cduntry 
debts, "  and  lia'.iniiuihg  the  anui'Ni'd  copy  of  the  said 
act,  and  di'^iiing  our  (i|>iuioii  with  re-^prci  >  the  \;didi- 
ty  thcreol',  uuil  whether  the  .•~aiuc  is  or  is  not  repealable 
bv  the  Crown,  it  having  been  contiinied  in  use  and  sub- 
mitted til  in  liic  >aid  nrnviiue  trout  the  time  of  the  pas- 
Ming  thcrcnl';  we  iiave  cousidered  the  aniU'Xi'd  law,  and 
are  ol"  opmi'in  that  such  part  nt' it  a-  pn.stpoiies  the  exe- 
cution on  )ud'j,uiiMits  for  fnn'iuii  delits,  in  the  uf;tuiicr 
therein  provided,  is  cnutrary  to  rci-on,  inconsi.'^tent  with 
the  laws,  and  gn-atly  prejudicial  to  the  intcrc-ts  of  this 
kingdom  ,  and.  therefiirc  unwarranted  by  the  chmtcr, 
ami,  con-cipirnily ,  \  oid  und  we  arc  of  opinion,  that  His 
MajestN  nia\  declare  ti;e  saiiu- to  be  m»,  :ind  hisit.\;d 
disallowance     hereof. 

I)     lv\I>KH 

June  3,   1717.  \\  .   Mtiut.w. 


Wk 


M'^ 


OK    THE  COLONIAL  CONSTITUTIOXs. 


40S 


(lO.)J//-.  J'aiit'fi  oLs-c)'valio)h<)  on  ihiart  ofthe  Virginia 
.U-^,m'>l;i.for  ,;Jicfof  t},eColh-.ie of  Willi' ,m  and  Manj. 
To  tliL'  Kiuht  Hon.,  the   Lords  Commissioners  of  Trade 

011(1  Plantations. 
Mv  Lords; 

Inobedi-Mu-c  to  your  Lordships'  t^ommands.  sijrnined 
to  mo  hy  Mr.  Popple  s  letter  of  the  20th  instant,  wherein 
your  Lordships    are  idea.^od    to    desire  mv  opinion,  in 
iv.iutoflavv.u-h.th.r  the  €2)1  per  annum,  appropria- 
ted l.y  Ihe  aet  (passed  in  Viririnia  in   1720,  entitled  an 
art  lor  layinir  a  duty   upon   liquors)  for   t  he  relief  of  the 
colle-e  of   WiHiam  and  Mary,  is  therehv  directed   to  be 
.solely  ai)plied  for.  and  towards,  maiutnining  and  suppo.t 
in,-  (he  full  number  of  masters  „ud  professors  who  arc 
t"    «e.ide    in    the    snid    .;olle.e.      I    have   eonsidereil  of 
the.suiu',  i.ud  am  humbly  of, .pinion,  thou-h  the  pream- 
ble to   theclau  e  vvhieh    appropriates  fj,  .  ,C2lM)    per  ^n- 
""'"    "'•'"■^    l'^»lieularly,;drulut..,l    tn    provide    for  the 
'""""'■•"""•"  "I'   the  full    number  of  m,.>ter.  ,„.]  profes- 
s' IS  ;  yv\.  thv  eu;..(i,,^r  ,„,,  ;,    ,;^.  ,|„,  ,,,.1;,.,- „,-    ,,^^.  ^^^,_ 

l"^VM.;:eneral,  auddireet.^  the  paviueut  of  the  duties 
'•"I'-'n.^tee.  until  the  trau<f,.rb.u,a.h.  to  the  eorpo- 
'•;''""■'-"•  Thi.b.iu..  I  :.pp.-eh,.nl,alt..etlK.rrela- 
tivc  tolh.'in,.thod<  pn.srribed  b\  I !,... .barter,  the  trus- 
tees were  enjoined  to  lay  out  ubal  money  uas„iven 
*'"•■"•'""'••  'i-t  I'li-e.  only  f.r  building  prop.Ted'iliees 
'  '■"""'"•••••>•  ^""'  '"'■""■  l"'.rbaM.  of  bookvau.l  other 
""•.-^..ru..,  until  tii,.  said  eoll,..,.,.  shall  b<.  a,tuallv  bu'lt 
'"^'"'"""'•"1  •  Hem  they  were  ,  >  a^M^u  what  land  and 
;;""7"'"-^  iK.-lto  the  pre>n|..nt  and  masters,  .0  that 
theolurterovpresslyevelud,..   ,bo   masters   and  profes- 

'"7''' '"'^  -Ivnnta.ire.uutd    th.  eoll-gc    was  linishcd 

uud  provided  With  aU  nucosiunctf. 


M 


'i; 


\i 


*  wim       .avLwm  . 


404 


OPINIONS  OF  F.MINF.NT  LAWYERS. 


The  Ici^islnttii'C  hal,  iii(U'o;l,  in  view,  the  provision 
and  miiintfiianoe  of  tlu>  society,  to  oncounige  them  in 
their  studies  and  the  servii'e  for  which  the  eollei:;e  was 
founded. — that  was  their  principal  design  ;  hut  their 
intention  heing  plainlv  subjected  to  the  charter,  nnist 
be  guided  by  it  ;  ami.  indeed,  those  general  words  of  re- 
lief nmy,  I  eonceixe,  very  properly  receive  (he  construc- 
jon  here  given,  because  the  sooner  the  college  is  built, 
l)y  tliis  additional  income  of  ,C2tH)  per  annum,  the  soon- 
er wiM  tla'v  receive  this  allowance. 

Tliat  the  president,  muster  and  fellows,  cannot  have 
immediately  this  £2l'(l  a  year,  is,  I  apprehend,  self-evi- 
dent, because  the  trcisurer  is  dire<;ted  to  pas.s  it  liaif- 
yearly  to  tlu'  ti  iistees  until  it  shall  be  transfern-d,  and 
from  such  transfer,  then  to  tlic  snp[K)rt  of  the  masters 
and  professors  ;  it  i>  not  to  be  tor  tlieir  support  till  alter 
the  transfer,  and.  In  the  ih,irler,uo  transfer  can  be  un- 
til the  collcgt'  be  built.  if  there  had  I'cen  the  same 
words  in  that  pari  of  the  fl;iu-c  concerning  the  pay  incut 
to  the  trustee-;  hall' yearly,  th.Lt  the  trustees  shnidd  |>;iy 
these  >ums  t<>  the  suppint  of  the  masters,  as  there  are 
after  the  transA'r,  they  might  then  ha\ c  had  .some  col- 
or for  this  demand  ;  but  it  i-;  wholly  rdatixi  to  the 
chartei',  wliich  oi'tU';  -  .jkI  direct^  the  building  .'lud  other 
necessaries  to  lie  lii-t  iiimiIc  .nul  pi'ovided,  bcfun>  any 
salary  can  Ik- allow  cfl  tlu'  pr  )l'c-.ors.  Hut  uliat  maken 
it  clear,  I  appi'ehend,  even  to  a  demonstration,  tiiat  tin,' 
clause  cannot  lie  considerei I  witliout  having  relation  to 
the  charter,  is,  thai  no  tru.vtees  art  .k  tually  nan  1  in 
the  clau'>e,  but  the  trustees  of  the  college  :  and.  there- 
fore, >h'>uld  it  n  i  iiave  n  reft'rence  to  the  chaitcr,  the 
clause  itscll  would  be  «'ntir<'i\-  void  and  of  no  elVi"  t.  lor 
tl.cru  wuolii  bu  then  uo  uuo  cmpowcruU  \)o  i-ouuivc  Lhid 


OF  THE  COLONIAL  CWNSTlTrTIoNs. 


405 


£2!ll)     per    annum,    for    any     purposes    at    all. 

Hut  1  would  submit  it  to  your  Lordships'  considcra- 
tion,  wlu-ther  it  might  not  he  proper  to  provout  design- 
inii-  men  hereafter  from  putting  a  construetion  upop  that 
•  liniH'  dilferent  from  what  seems  to  he  the  most  equita- 
Me  ami  natural  one,  for  your  Lordships  to  recommeud  to 
1 1  is  Majesty,  to  signify  to  the  (Jovenior  ol'  this  colony, 
that  the  construetion  I  hund)ly  put  upon  this  clause, 
(supposing  it  is  agreeahle  with  your  Lordships'  senti- 
nients)  is  the  sense  His  Majesty  would  have  it  taken  in. 
Tin-,  with  humhle  submission,  would  entirely  prevent 
lutu.e  misapplications,  supposing  there  was  an  inclina- 
litiu  in  any  one  to  do  it. 

April  20,  1727.  Fh.x.   IMNE. 

(2it.)  Tht  oljt-Hic^xa  of  the  Attorn,, i-G,  in, -al  Xorthq,, 
o!>  x>,///    i,f  tht  Viiwjinid  arts.  HI    1701. 

To  the   Right  Hon.  the  Lords  Commission.T  for  Trade 
and  Plantations. 

May  it  please  your  Lordships; 

in  humble  obedience  to  y(.ur   Lnniliips"  .,rder  (^f  ref- 

'•n-ure,  .ignilied  to  me  by    Mr     FoppI,..  1    have  perused 

and  CO,  ^ideredofthe    -verallaws  hen.;.lter   m.-nti.,ned, 

p:i^M^d  in  the  general      >embly  ,,f  \-irnini;.    iuD.T.   17(|(| 


August   1701,  and  Mi 


■d    .\ugust   ITOl',  viz  :    -'an  act, 


forcmtinuing  the  ad  ^  hibiting  the  rvpnrtation  of 
Indian  corn;'  -an  act,  making  tbr  F.en.l.  refugees  in- 
habiting at  the  Mamiikin  town  and  the  parts  adjacent,  a 
•li^lMct  p;,nsh  by  themM-ivc-,  ;,nd  exempting  them 
from  the  pavment  <^f  pubji,.  „„d  .•niintv  i.x  ie..  in,- seven 
years;"  '-an  a<'t.  foi  more  eii.-,|u:,i  ;,nd  '^peedv  can  \  ing 
<»n  therevisalof  the  laws;  an  a.t  f,,,-  l„e  raising  a 
public  levy  i"  -un  act,  lor  the  more  ellcctual  aonreheud- 


406 


OPINION'S  OF  EMINENT  LAWYERS. 


ing  ail  outlying  negro,  wlio  hath  coiniiiitted  divers  rob- 
beries and  offences  ;"  •  an  act,  givinu'  power  to  the  sher 
ifts  attendiiii!;  the  general  court,  to    suninion  jurcrs    and 
evidences,  within   the    city    of  Williaiii- 


ourgli,    and  one 


an  act.  continuing  llie 


half  a  mile  nnuid   the    same; 

acts  laving  imp,)sitions  on  li(|uors.  servants   and   slaves, 


until  the  !2oth  of  Docemh^r,  170;' 


<in  a:- 1.  giving  fur- 


ther directions  in  building  the  ca])it'il.  and  for  i)nilding  a 
public  pri.son  ;"  'an  act  for  dividing  King  and  Queen 
county;"  '-an  act  for  the  better  strengthening  the  fron- 
tiers, and  discovring  the  approadie:*  of  !in  I'lioniy 
ordinance  of  assemlilv,    i)rohiIiitiim-  tl 


■;m 


le   ontinaiN   keen- 


ers  to  entertain,  i'\:c.  th(>   workmen    employed  for  Innld- 
ing  the  capitol :'"  -au  oi-dinance  olasscmlily,  for  settling 


the  l>ound>of   Islr   of  \\'iu:ht,  S 


urre\' 


md  Charles  Citv 


counties,  on  tlie  south  side  of   iJlack    Water    Swamp  :" 
'•an  act,  for  continuinir,  meeliiit:-.  and  siliiuLi-.  of  geneial 


assemblies,  in   ca.-c  of  the  ilcath.  or  demis 


■f  Jiiv  M 


'.1- 


estv.    his    1 


leir; 


lud    succi'.-sors 


an   act   1o    prevent 


iiiasiers  ol  >lnii^  oi'  ve 


"b 


runinng  awa\    alter    cnioar- 


iroes  are 


;r,i    ordmiincc  ol 


a--en;iiiy.  ior  settling 
ividing  lines  between  the  coimtics  of  l>lc  of  Wiiriit. 


the  d 

Surrey.  Charles  (.'itv,  and  Nan>iinoud,  on  ti 


II'  soutli  side 


oi  IJlack   Water   Swami)  ;  '  -aii 


and  settlement 


icrne 


tor  til 


an 


1 


acl 
-piitc 


ir    the    icgnlation 

of  public     e\i)i-('SS- 


tr  the  --peedy  transporting  of  foice-   over  riv 


er' 


and  eit.  ek.-  Ill  time  of    daniier 


ail  act,  for  [)rohibitiiijj: 


seamci     k  lug  iiarliored  or    enti'itaiicd 
act  for  diviiling  Charles  Cil_\   i(iu.it\  ;" 
ing  a    public  levy  ,'   --ah  ordinance  of 
ilefeiK'e  of  the    co 
\\  hicli  1.1  w-i,  vi/ 


oil 


tioic 


an 


.III  aut  fir  ruis- 


llllliX       1 


i  lUh 


a--ein 


ijanuer 


bb 


lor 


th 


oine    o: 


tl 


act,  W'v 


eoniiiiiiim:  an   act    |iroiiibi- 


tjng  th.' cxportaluai    of  Indian    euiu  ;  the  aa  mad 


0  m 


or  TlfK  COI.ONtAL  CON&TITl'TiONS. 


407 


1700,  tor  nn-.inp  :i  public  levy  :  and  the  act,  tor  oontinu- 
mj?  the  acts  layin,ir  impositions  na  li«,i,ors,  &c.  I  find  are 
expired  :  and  the  ordijiance  of  assenibh".  made  in  1701 
iorseltlin-the  ooundsorthe  Isle    of  Wiirht     &e    is  re- 
pealed. The  rest  of  the  sai.l  laws.  I  conceive,  are  agree- 
al.let..  lawand.inst.ee,  and  do    not   contain  anv    tliincr 
prepuhcial  t<.  Her  Maiestys  prerogative,  save  onlv  such 
01  them.  an.I  in   .nvh  pon.ts  and  particulars  onlv,'asare 
heren.alter  mentioned  and  ohs,.,ved  to    y„ur  Lordships, 
VIZ  :  as  to  the  act  for  exempting    the    French    refugees 
tioin  the  payment  of  puMic  and  count  v  levies  for  seven 
years,  I  have  no  objection  to  it,  provided  that  the  public 
and  county  levies  be  taken  to  be  such  as  were    in    tbfce 
at  the  time  of  making  that  act. 

As  to  the  act  for  the  revisal  of  th..  l^nvs.  as  I  have 
not  seen  the  powers  given  bv  the  act  of  the  '>7th  of 
AprilKi!.',..  refened  to  by  thi^  a.(.  I  eannot  judge 
whether  tins  be  proper  to  be  conlinued  :  if  the  powers 
thereby  .-.ven  lo  make  laus,  it  is  not  (I  .•unceive)  fit  to 
'"^'•"»'i''">'"l:  ifonly  to  prepare  to  lay  before  the  as^ 
sembly,  it  will  need  no  confinnation. 

As  to  (Ik-  act  f,r  appreheiidinir  ;,,!  outlvinti  negro  who 
has.Munnntt.Ml  divers  robberies  and  olienrcs.  the  a<-t  at- 
taint^ a  n(.gr.)  slave,  alleged  to  he  a  robber,  without  giv^ 
mg  h.in  a  day  to  render  lou.self  which  f  think  is'.ot 
reasoiiab|(\ 

Asl,,  tic.aci  fnr  the  better  strengthening  (he  fron- 
tiers,and  di<rnv,. ring  the  approaches  of  an  enemv.  I  have 
noobjeetinn  tu  i(,  i|  ^  ,,Hr  Lordships  be  of  opinion  the 
q..antityufiandallou,Ml  to  the  sd  tlnnent  on  the  fron- 
tiers   be  ii,,t  iuu  iiMudi. 

And  as  tu  the  act  to  prevent  masters  of  ships  or  ves. 
sole  rupuiui;  awui 


i> 


if 


'vv^n 


after   tho   ewibarc- 


(M'.H    nr<> 


liiiil      «li 


'i 


i 


r 
f '  ■ 

I- 

♦|-, 

I* ' 
1 


408 


OPIMUNS  OF  EMINENT  LAWYERS. 


act  being  to  ohlio-e  uU  ma>4ters  of  ships,  wlien  tliev  make 
tlieii-  entries,  to  u"i\e  liond  not  to  depart  Avliile  an  em- 
bargo is  laid  in  Virginia,  I  am  of  opinion  it  is  not  tit  to 
be  oonlirnied  absolutely,  but  for  a  certain  time,  and  till 
Her  Majesty,  her  heirs,  or  successors,  shall,  in  council, 
order  otherwise,  for  it  may  happen  that  ill  use  maybe 
made,  by  lading  embargoes  tliere  for  private  ends,  tu 
the  prejudice  of  trade. 

Edw.   Nohthf.v. 

(21.)  7'1/e  Solicitoi'-GeiKval  Ilaroiiri's  rc-po  /v.  on  t'le 
arf-^  of  the  B  r»r:,/<i  .l.v.sYwW<V.y,  in  1090-01-1)3-1)4. 

To  the  Right    Honorable    the  Lords    Conimi.ssioners  for 

Trade  and  Plantations. 

May  it  please  your  Lordships; 

In  obedience  to  your    Lordshi])s'    order  of  roierence. 

signided    to  me    by  Mr.    Popple,  I    have  consideied  the 

several  acts  passed  at    a  general    assembly  held  in  the 

Bernuida   Llauils.  (luider    the  government  of  Mr.    Ki- 

chier)  iu  lOK.)  and    IGDI,  viz  :  "an  act  for    vacating  the 

indelinito    acts,  luadc    at  the  last  .session  of  asseml)lv;" 

"an  act   foi-  the  strict    observation    of  the   Lord's    dav. 

connnonly  called  Simd.ay  ;"  "an    act    against    sweariiii;- 

and  cursing  :  '    'an  act  against  bastardy  and  'ncontineu- 

cy  ;"  "an  act  to  proliioit  fnun  retailing  rum  and  li(piors 

pulilicly.  willi   ut  li.'cu^e  of  tlu'  justices  of   tlu'  peace  ;" 

"an  act  ;igaiiist  gaming  :  "  "an  act  for  keeping  a  diligent 

gaurd  at  the  rasth-  and  Pagitt  s  Fort;'  "an  act  for  kecj)- 

ing  a   good  look  out   at  tiie  mount  in  St.  (Jeorgo  s  ;  '     an 

act    f)r  the   spi",'(i\    recovery  of  debts  and  damages,  by 

niei-cliaut-.  straugeis,  mariners,  &c.:"   "an  act  fur  tr\  iiig 

any   debt  or  dilVercucc.  not  exceeding    twentx    shillings, 

by  the  justices  of  the  peace  ;"   "an    act    for  reco\cry  of 

dobtp  from  per.sons  inaolvont  ;"  "an  act  to  prevent  par- 


fS 


OP  THE  COLONIAL  CONSTITUTIONS. 


4U9 


ish  cliarges,  by  poor  persons  removing  tVuni  one  tribe  to 
another  ;"  "an  act  against   buying  and  ingrossing  corn 
and  merchandize  ;"    "an    act   directing   what  warning 
fhall  be  given  to  a  tenant  at  will;''  "an   act   to  prevent 
destruction  of  bonndnries  ;'  "an  act  to  prevent   the  de- 
struction offish  \}y  bawling  ;"  "an  ac^  to  prevent  the  de- 
^tiuctio        Button  Wood  ;"  "an   act  against   renioving 
and  taking  away  boats  i'roin  their  nKKJiing  place  ;"  -an 
act   against  deceit  in  makinii-  up  tol)acco  ;"'  -an  act  for 
putting  out  apprentices,  and  setting  idle  people  to  work;" 
"an  act  to  prevent  buying,  selling,  or  bartering,  with  ne- 
groes and  other  slaves  ;"  "an  act  for  trying  negroes  and 
sl.-ves  ;"  "an  act  for  young  men  to  pay  parish  duties  ;" 
"an  act  for  vessels  paying   powder  money  ;''  "an  act  to 
prevent  stealing  corn,  pahueto  tops,    and  provisions  ;  • 
•an  act  for  repairing  the    highways  ;•  "an    act  to   pre- 
vent damage   by  cattle,  poultry,  &c.;  '   "an  act  for  main- 
taining the  public  bridges  ;■'  •an  act  to  prevent  the  de- 
struction and  transporting  of  palmeto  tops  and  brooms;" 
"an  act  for  settling  intestates'  estates  ;""  "an  act  for  pre- 
venting difierences  about  dry  goods  imixu'ted  into  these 
islands;"  "an  act  for  the    liberty  of  the    subject;"  "an 
act  about  pleading  ;"   -an  act.  appointing  the  number  of 
liie  assembly,  and  the  registering  the  acts  ;"   -an  act  for 
establishing  and  regulating  c-ourts  of  judicature  ;"  -an 
act  for  quieting  men's  estates,  and  ])reveiiting  law-suits;" 
^•un  act  abcait  shipping;'  "an  act  to   regulatr    t!i>  mili- 
tia.      Audi  have    Hkewise    considered   of   the  .several 
"(her  acts,    pa.ssed    at    a  general  assembly,  held  in  the 
Ik'nnuda  Islan<ls,{nn(ier  thegoverument  of  Captain  Clod- 
dMni)i„   Um,  viz:   "an  act   for  the    due  regulation    of 
weights  and  measures;"    -an  act    for  the    alteration  and 

amendment  of  seveml  acts  of  assembly;"  "an  act  furset- 
53 


1.11 


r 


410 


OPINIONS    OF  EMINENT    LAWYERS. 


iMMt  t 


tUng  a  yearly  revenue  upon  the  ministerH  of  these  is- 
lands ;"  "an  act  ibr  lif)erty  of  the  subject  (fro^.i  illegal 
invprisoninent  ;")  "an  act  for  selling  the  governor's  old 
boitse,  and  erecting  of  a  new  house,  fitted  for  the  enter- 
t^ainment  and  accommodation  of  the  present  and  suc- 
ceeding governors  ;"  "an  act  to  prevent  false  alarms ;" 
"an  act  to  prevent  the  destruction  of  young  cedars  ;"  "an 
act  to  pr()hi})it  any  from  retailing  rum  and  liquors  pub- 
licly, without  license  of  the  justices  of  the  peace  ;"  "an 
act  to  prevent  the  destruction  of  fish,  by  bawling  ;"  "an 
act  for  raising  a  public  revenue,  for  the  support  of  these 
their  Majesty's  islands  ;"  "an  additional  act,  for  raising 
a  public  revenue  for  the  support  of  the  government  of 
these  their  Majesty's  islands." 

And  I  have  likewise  considered  of  the  several  other 
acts,  passed  at  a  general  assembly,  held  in  the  Bermuda 
islands, (under  the  government  of  Captain  Goddard,)  in 
16i  4,  viz  :  "an  act  for  settling  the  Governor's,  and  all 
his  officers'  fees ;"  "an  act  for  limiting  the  time  when 
appeals  shall  be  prosecnted,  tliat  are  claimed  from  the 
courts  of  common  law,  U>  the  Governors  and  coui^cil  of 
Bermuda;"  an  act,  laying  an  imposition  on  all  Jews, 
and  reputed  Jews,  trading  or  meri  handizing  in  these 
islands  :"  "an  act  for  the  continuance  of  an  act,  entitled, 
an  act  for  raising  a  public  revenue  for  the  support  of  the 
government  of  these  their  Majesty's  islands  ;"'  "and  one 
other  act,  entitled,  "an  additioiml  act,  for  raising  »  pub- 
lic revenue  for  the  supix)rt  of  the  government  of  these 
their  Majesty's  islan<ls,  for  one  year  Kmger  after  the  ex- 
piraticm  thereof" 

As  to  such  of  the  saiil  laws  as  are  hereimifter  particu- 
larly mentioned,  I  humbly  lay  before  your  Ijordships 
my  opinion  thereupn,    viz  :    "an  act  to  prohibit  from  re- 


OF    THE    COLONIAL    CONSTITUTIONS. 


411 


tailing  rum  aod  li(iuors,  publicly,  without  license  of  the 
justice.s  of  the  peace." 

This  act  is,  by  a  particular  proviso  therein,  to  continue 
for  two  years  from  the  publication  thereof,  and,  I  pre- 
sume, was  intended  to  commence  at  twenty  days'  end 
after  the  publication,  but,  by  mistake  in  penning,  the  act 
cummences  immediatel3and  lasts  no  longer  than  twenty 
days. 

"For  keeping  a  diligent  guard  at  the  castle,  and 
Pagitt  s  Fort." 

In  the  clause,  for  the  further  encouragement  of  the 
watch  and  guard,  by  distributing  the  fourscore  ears  of 
corn,  there  is  an  omission  of  a  line  or  two,  which  makes 
that  clause  nonsense.  In  the  same  act.  No.  B,  the  clause 
is  right. 

"An  act  for  trying  any  debt  or  difference,  not  ex- 
ceeding twenty  shillings,  by  the  justices  of  the  peace." 

By  this  law,  the  justice  is  enabled  to  allow  what  he 
pleases  to  be  evidence,  whereas  he  ought  not  to  deter- 
mine but  by  legal  proof. 

This  act  also  provides,  that  after  judgment  shall  be 
awarded  l)y  the  justiPe  of  the  peace,  if  satisfaction  sluU 
not  be  made  within  ten  days,  the  justice  is  to  grant  liis 
warrant  to  levy  tlie  debt  and  charges  by  distress  and 
sale  of  the  party's  goods,  and  for  want  of  such  distress, 
the  justices  are  empowered  to  hire  out  to  service  the 
defendant,  till  the  debt  and  charges  shall  be  satisfied  ; 
but  there  is  no  rule  to  determine  when  the  debt  is  sat- 
isfied, or  by  what  means  the  party  shall  again  obtain 
hi-  lil)erty. 

This  is  not  uurecablc  to  any  execution  which  can  be 
awarded  according  to  tile  law  of  England:  it  gives  an 
arl)itrary  power  to  the  justice,  to  make  any   defendant, 


I     , 


m 


.-t^- 

i    f 

i*.!. 

■'\  ■ 

B 

-M 

V 

'    ,': 

i\ 


' 


412 


OPINIONS  OF  EMINENT   LAWYERS. 


from  whom  sucli  dt'ht  sliall  l»f  owin^^,  a  rterv:mt,  if  not  ii 
slave,  to  wliomsoi'vor,  ami  wlioresoever,  lie  thinks  lit  : 
for  these  reasons,  I  think  this  act  not  fit  to  l)e  conr 
firmed. 

•'An  aet  for  reeoverv  of  dehts  tioiu  persons  insol- 
vent." 

By  this  aet,  every  ])ei-s()n,  of  vvli.it  quality  soever,  as 
well  stranjrers  as  inhahitants,  within  the  island,  who 
shall  be  in  prison  for  debt,  and  shall  not  pay  the  same 
Avithin  ten  days  after  such  pul)lieation  as  is  mentioned 
in  the  act.  is  to  he  hired  forth  to  any  p<>rHon,  in  any 
plaee,  and  upon  any  employment,  as  the  Governor  and 
council  shall  order,  for  satisfaction  of  the  said" debt,  but 
no  rule  is  laid  down  to  ascertain  the  rate  or  price  for 
which  sucli  person  is  to  serve,  nor  when  the  debt  is  to 
be  satisiied.  nor  luw  the  debtor  shall  be  di.seharged 
from  his  service.  ?er>uns  of  very  good  ability,  (especial- 
ly strani-ers.)  throuuh  misfortunes  or  aceidents,  may  be 
in  prison  for  delil,  and  unable  to  pay  the  same  within 
ten  days  ,  yet  such  ui  sous  are  etpially  liable  as  persons 
really  insolvent,  to  'tecome  servants,  to  work  out  their 
debts. 

Thcmgh persons  insolvent,  only,  arc  mentioned  in  the 
title  of  tiie  act,  yet  this  law  extends  to  all  persons 
whom.soever,  and  lO  all  del)ts,  witliout  any  distinction: 
I  think  this  act  not  lit  to  l)e  contirnied. 

"An  act  for  putting  out  apprentices,  and  setting  idle 
people  to  work."' 

This  act  directs  such  as  are  of  the  age  of  fifteen  years, 
and  living  idly,  ami  not  having  wherewithal  to  main- 
tain themselves,  to  be  forceil  to  work  or  go  to  service,  as 
is  required  by  tlu  ^tatut.■s  made  7  Jac.  1.  cap,  2."),  and  28 
and  there  are  not  an\  such  statutes  ;  but  this  act  r.'fers 


OF  THE  COLONIAL  CONSTITU  HONS. 


41S 


also  to  .several  other  laws,  which  may  Ixj  of  great  use, 
ami  tiiercfore  may,  without  pnjudice,  he  confirmed. 

'•All  act  ior  settling  intestates  estates." 

This  act  in  No.  A,  is  right^  referring  to  the  act  made 
in  the  :>2:in(lli3  of  Crtr.  II.  chap.  K) ;  hut  in  No.  B, 
there  is  a  mistake  in  the  chapter  it  refers  to,  it  men- 
tioning the  11th,  instead  of  the  10th. 

"An  a(!t  for  the  liherty  of  the  subject." 

The  statutes  of  Hen.  III.  and  Edw.  III.  referred  to 
ill  this  law,  arc  unnecessary  to  be  enacted  wit  .  these 
islands,  being  declaratory  of  the  common  law  of  Eng- 
land. If  the  IGth  Car.  1.  should  be  ther'  in  force,  the 
juri.sdiction  and  authority  of  the  Queen  in  council,  m 
making  any  determination  concerning  any  lands,  tene= 
inents,  goods,  or  chattels,  on  appeal  or  otherwise,  is 
wholly  laid  aside. 

This  hiw  likowi.se  enacts,  that  all  laws  in  force  iij 
England,  relating  to  liberty  iid  property,  shall  be  alsq 
in  force  within  thoise  islands,  which  I  conceive  to  be 
very  improper,  and  ought  by  no  means  to  l)e  approved  of. 

"An  act  for  quieting  men's  est;>^>^,  'nd  preventing 
law-suits." 

A  statute  of  limitiition  is  undoubte.  .  least  as  nec- 

essary in  these  islands  as  in  England  ;  but  this  act  is 
so  \eiy  imperfectly  drawn,  that  it  will  rather  destroy 
mens  undoubted  rights  than  cpiiet  them,  and  create  law- 
suits than  prevent  them. 

An  actual  enjoyment,  for  twenty  years  before  the  ma- 
king this  law,  without  any  claim,  rent,  service,  or  ac- 
kiiowledgnunt,  and  five  years  continued  enjoyment  af- 
terwards, or  the  like  enjoyment  lor  twontv  years  at  any 
•itiio  after  the  making  the  act,  is  turned  into  an  absolute 
estiite  uf  iuheritauce. 


(     , 


i  i  i 


^t 


('■  'h 


f:% 


I   > 


If 


414 


OPiNIDNS    or   KMINF.NT  I.AWYKHS. 


As  ttt  tlio  limitiitioji  (if  llvo yciUH  after  the  making  the 
act,  1  (H)ii(H>iv('  timt  time  to  Ik*  nliort,  aixl  perwm.'^  who 
.''■••.la  rij^lil  ot'»Mitrv  mij,'l:t  Ih*  siii|)rise<l  tlicri'hy  ;  and  an 
this  .;«'t  if<  ponncd,  ixtsoms  wlio  have  an  inidouhtod  title; 
in  riwtMsioii  oinMiiiiindtT,  may  In-  hanvi  thoiroC,  by  the 
|>OHsi'ssion  of  the  ti'nnnt,  tor  yrars,  durinjj;  wIioho  poHHCs- 
sion,  'lii-N  ill  n'vcrsion  or  romaindiM',  cannot,  by  law 
make  jiii\   entry  or  claim. 

The  p.ovisioii  in  tluH  aut  on^ht  to  have  been  agreea- 
i>lc  to  t!ie  Mfiitute  ollimitation.s,  miule  in  the  twentv- 
(irst  year  of  Kini,^  .lames  l.,\vlu>rel)y  persons  having  aiy 
right  or 'title,  ari>  oidiged  to  enter  within  a  certain  num- 
ber ol' \  ears  after  smli  right  and  litlu  of  entry  accrued 
to  them,  or.  in  defiult  theit'of.  are  debarred. 

For  the  iiiipi'i  feiM  drawing  of  ll.is  ic*,  and  the  ill  con- 
HO(iueiic»-,s  (|i;it  iiiay  jiris<'  tliereby,  1  <'onceiv?  it  ought 
t«)  1k<  rejeeu  li. 

'An  ac>  tor  the  nlteratioii  and  nmendment  of  several 
act.w  ol"  asseiiibi  V.  ' 

I'art  o'"  'is  act  varies  part  oi'  tlie  act  l«'fore  iM'>ntion- 
I'd,  fo.frxing  !in\  <lebt  or  ditlerence,  nit  exceediiig 
twenty  shillings,  h\  the  jest ic,>s,  but  leaves  it  liable  to 
the  obji-eiion  belwic  maili>  to  it  ;  and,  therefore,  I  thiiil': 
this  act  not  lit  to  be  (('niirmed,  though  1  have  no  olm*c- 
ti(Ui  to  the  r.sldiie  of  the  act. 

*.n  act  lor  liberty  ol"  the  siih;cct  from  dlegal  impris- 
onment. 

Ties  act  gives  the  entire  bene!"  '.f  the  habea.-j  corpus 
ret.  made  HI  the  ;{ 1st  king  Charl  11.  t..  tlie  mhabi- 
taiit.s  ot'  this    si  iiid. 

Tli(>y  h,i\c  all  the  biin  fits  of  the  writ  .i|"  l:,il;,is  ,^,r- 
puf.  wbu  h  liu'  ettnunor.  law  of  Kngland  gives  against  ii- 
legiil   impri-^oniiu  nts.       It    nm.st    be  .siil,initt«'ii    to   your 


OF  THE  COLO.N/AL    CONSTITUTIONS. 


415 


Lordships,  whether  Hiuh  an  net,  in  thom;  \K\vtn,  will  not 
lesHPU  tlic  (lej)en(lenee  upon  the  Crown.  11'  HiKih  a  law 
she.ild  not  he  thoiipjiit  iiiipro|)er  tiiere.  yet  tlu-  grxnti 


.  h<ihf(i,<^  I 


justice    of  the  peit(!C. 


"K 


y>/y>//.v  oii^ht  not  U.  [)o  iii    the  jMnver   (.1"  every 


'An  ;i;'t!  )  prohihit  any    Irrjiu    relaihn^r  nnn  ftfid  li 


(pior.s,  iHihlicly.  vrithont  li( 


Tl 


■use  of  t!,e  justice  of|)ea<!e 


le  same  iiiistiike  is  in  thi.s  act,  as  in  tl:e  act  with  tlu 


srvMie  title,  made  in  thej^eneral 
however,  this  act  alw 


fi.-setiihly,  held  in  |tiiM)-l; 
»  is  \in\^  (<incc  deteiniined,  iccord- 


•'« 


to  tl 


'.  ir  intentioi  j. 


As    to    tlu>    residue  of  tl 


le    scvrrnl   nets 


con'^ennng 


which  I  !  e  mad  '  no  pnrticnlnr  remark  your  Lord- 
ships wiii  ohserve  that  very  many  olthem  were  hnt  tem- 
porary, and  are  determiiu'd  se'cral  yeiiis  since,  and  few 
>fthem  drawn  so  carefully  as  they  u\\^\'  to  he  ;  and  in 
iiiiiny  of  them  thero  s -em  t»)  f»e  luistakes    jii    fiRnscrih- 


lUl^ 


ho\ 


\'ever, 


law,  as 


t<   \>\\ 


I    1 

tl 


lavc    no    such 


»hj<'ct 


ion,   in     xtint  of 


ise  the   rcjectiii;^  of  (h.  m. 


Sim.  TIah(oi'»t. 


Dec.  r,,  170:{. 


si 


I  , 


To  tiie    Hi^ht  llonorahle   the  I 


Tnui 


e  !iil( 


May  it  pl( 


n  o.'H'tlieiM 


lit 


d  IM 

inta 

ease 

yoi 

e    to 

yo 

■    h 

Mr 

.ur. 


vouniu.ssidners    of 


tions 


\v  Lord>hips ; 

or    [,onlshi|.s'   (irdcr  i.'    reference, 
'.   rojiple.    I    jcive    (on.salenMi     Mk- 
several  iwt**.  passed  at  a  genenil  as <('M  1,1  \  ,    held   in    the 
llenmida  Islands,  (under  the  |,'ovenrrientof  .Mr.  iCichier,) 

»i't*<, 

!    the 

citnnnonlv    calh'd 


signitied  to  m« 


m  IC.'.Hi-j,  vi/,  •  ^in  let  for  vacating  tne  indelinitt 
made    in  the  last    ureneral    assrinnU 
strict  ohservation  of  tie"   Lords    da\, 
Suud 


an 


ay  ;"  'an  act  iigainst  swc'ariiif;   and  cmsinjr ;"  "m> 


I  M 


*  'I 


iV 


416 


OPINIONS    OP    EMINENT     LAWYERS. 


act    ngain.st    l>astrtrcly    and     incontinency ;''    "  an     att 
against   gaming  ;'  '-an  act  for    the    keeping  a  diligent 
watcliand  guard,  at  tlie  castle,  and  Pagitt's   Fort  ;'      an 
act  for  keeping  a  good    look  out  at    the   mount    in   St. 
George's  ;"  ''an  act  for  the  estahlishinr    and   regulating 
the  courts  of  judicature  ;"  'an  act  tor  the  n)ore  .s|)eedy 
recovery  of  de})t,s  and  damages,  by  merchants,  strangers, 
mariners,  &c.;  '  "an  act  for  trying  any    debt    or    din'cr- 
ence,  not  exceeding  twenty  shilling.^,  I)y   tiie   justice  of 
the  peace  ;"'  "an  act  for  the  recovery  of  debts,  from  per- 
sons insolvent  ;"  "an  act  preventing  mischiefs  by  dogs;  " 
"aii    iR't    to  prevent  parish  charges,  by  poor  persons  re- 
tnoving  from  one    tribe  to    another  ;  "  'an  act   against 
buying  and  ingrossing  corn  and  merchandize  ;•'  "an  act, 
directing  what  warning  is  to  ])e  given    to    a    tciiunt    al 
will;'   "an  act    toprexcnt    destruction   i)i    l)oundiiries  ;" 
"an  act  to  prevent  dcstiuctiou    of    Button  Wood  ;'     an 
hct   against  the    i-«'moving  and   taking   ;;\vay  l)o;its  from 
fheir  mooring  j)la(;es  ;"'   'an  a<'t  against  deceit  in  making 
up  tobacco  ;''  "an  act    for   jtutting  out  ap|treiitiiH's,  and 
ftcfting  idle  persons   to  work  ;'"  "an  act  to  prevent  bu\  ■ 
ing,    s(  Uing,    or     bartering,     with    negroc  -,    and    other 
slaves;"  "an  act  I'or  trying  negroes  and  slave.«<  ;       an  ;'ot 
for  young  men    to  jiav  parish  duties  ;"   "an    act   for  \e.s- 
fels  paying  powdiirnoiiey  ;'   "an   act    to    prevent  .st";d- 
Mig  corn,  jwdmeto  tops,  and  provisions  ;      "an    iict  loi-  rr- 
fniiring  the  highways;     jin   act    (r.  preveirt  daniiiirc..   h\ 
cattU'.  poultrv,  ^:c.;"  "an  act  for   maintaining  the  pubhi 
bridges;'    "an  act  topicvent  tl,.    o<-slrnction   and  trims 
portation  of  palmeto  tops  anill'rooms  ;       an   act  for  <,.t 
t'ing  intestates  rstjite.s  ,"     'an  .ict  tiir    prt  vcnliin'    dillcr- 
ences  almut  dry  gocKJs.  importi'd  into  these  island-^  ;      iiri 
l*et  fc»r  the  liberty  of  the  subject  ;  "   "an  act  .iIkhiI  jiiead 


■  Ml 


OF  THE  cnr,OMAI.  tONM  ni;  rioNS. 


417 


ins  ;■'  'ail  act,  appointing,'  tlu>  nnnil.or  of  the  a.s.scuiblv 
and  resi.stering  the  arts;-  '..n  mt  for  iv-nlating  the 
niihtia;'  -^un  act  for  liUorty  of  vessels  iroing  ont  ami 
coniin-  into,  these  islan  Is  :'  .,,„  ,„,t  f.,,'  ,p,ioting  men's 
estates,  and  preventin.o-  l.Av-snlts  .•  all  which  laws  are 
<"ontau.<Ml  ,n  tlie  l.ooI<  of  l:uvs.  un.!(-r  seal,  kc.  mark- 
ed  li. 

1  apprehend  ilu', Slid  law.  to  I.,.  ;.  di.qdieate  of  the 
^.ws..u„tainedin  the1.<»ok  oi'  hws  marked  A,  which 
passclinlheyears  K;!),,,  .ad  I'.l- L  exeeplin^  onIy,that 
ca(di  ol  the  sa-d  hooks  contain-,  u  law  or  two,  vM.ich  are 
not  cmtamed  in  the  other  ;  and.  l.y  comparing  the  acts 
It  Hdh,pi,ear,  that  in  very  many  pla.-es  there  is  some 
'IdK^nmcem  (he  e.vprosion.  or  son.e  I'ew  words  omitted 
'"•  li-anspo.Md,  .vIm.  h  may,  perhaps,  ha  v.  proceeded  from 
anegligenl  li..n  ..  ril.ing  tliem  from  thr  reronl. 

As  for.su.hnf  (iH.actsal.ne  mei.lione.l.  which  have 
the  same  title  with  tho.-.  uiihe  hook  n.arked  A,  against 
which  1  have  mad,,  any    ol,;..!],.,,  in    mv  report  to  vour- 
Lnyds\ui>.   therenp.n,  are  liable    to    the  same  ohjectiun 
tl'-acls  hen.g  either  rcr/>./^/,;,  the  same,  or  e.  nlaining  m'. 
material  \ariance. 

It    ,     .      !-,>..  ''^'^'    "  \i{'  Ol  HT. 

(22.)    '/■/„•  .mm<'.hiwyer\s,:j„>,l  n„  tL  art.  nf  tl>r  .,am,^ 
Amenihlif,  1(598. 

''';,""■    ''^-'"    «I"n'>nvl>le    the  I.onI    (  nmmixioners  of 
I  i-ade  and  Pl;nitatinii- 

May  it  pl.>a^e  your  I.  .rdvhjp.M. 
'"  -'-'li-n.-.    to  y.,nr   Lonlships'  urd.r  of   >ef,,en.<e 
><.Kndi.d   t..me    l.vMr.    Popph-     F   have   eon>idered    the 
several  art,  parsed  at  a. r-n-rai    a^-en:I,lv    at    M(  rnmda 
■I'"!'"'-  the  govrrnment    ofSanmelDav    Kh,    t'le  iJlst   of 
<>''t4)her,    ICDS. 


■     ! 

1 

1 

i 

1 

i 

\ 

1 

% 


♦I 


418 


OPINIONS  OF  EMINENT  LAWYERS. 


1.  An  act  for  the  restraining  and  punishing  privateers 
and  pirates. 

2.  Va  act  to  prevent  stealing  of  oranges  and  other 
fruits, 

3.  Additions  and  alterations  to  the  act,  er*^itled  "an 
act  for  repairing  the  highways," 

4.  An  addition  to  the  act  for  the  trying  of  negroe» 
in  criminal  eaus(>s. 

5.  An  act  for  addition  and  ainendtnent  to  an  act,  en- 
titled 'an  act  to  prevent  the  destruction  and  transport 
tation  (vf  jMihneto  tops,  iind  T>r()oms." 

The  act  for  restraip.ing  ami  punishing  ])rivateers  and 
pirate  ,  as  penned,  seenvs  lijihle  to  se\eral  oltjections. 

Bv  the  first  enacting  clause  it  is  lade  felonv,  with- 
out  henetit  of  clergy  for  any  person  who  then  did,  or 
within  four  years  tlicn  i)ast,  had,  or  at  any  time  after- 
wards, should  i'diahit  or  )>elong  to  Miis  island,  to  serve 
in  America,  \n  a  hostile  nuinner,  under  any  foreigji 
prince,  state,  or  potentate,  against  any  other  sovereign, 
prince,  state,  or  potentate,  in  amity  with  the  King  of 
England,  without  license  from  the  (lovernor. 

There  is  a  proviso  that  this  clause  should  not  extend 
to  any  person  then  in  service  to  an\  fore:j;n  state  or 
potenUite.  who  shonld  <[uit  sueii  service  l)y  the  4lh  of 
August  then  loildwing. 

As  tiiis  part  of  the  liw  is  framed,  persons  not  guiltv 
of  an\  iiime  whatsoever  tna\  he  liahU- to  suffer  death 
they  may  enter  into  the  service  of  an\  foreign  prince, 
state,  or  iiotentate,  w  ho  arc  not  in  hostility  with  anv  of 
the  lilies  of  Hngland,  and  if  atterwaids  wur  should 
lircak  forth  between  sucli  fon-ign  priiiee,  stal»',  or  iM)tcn- 
tate,  into  whu.xe  service  ti  y  entcr<(l,  without  hein^' 
guilty  of  any  crime,  with  any    other  sovereign,  prince, 


■-%' 


or  THE  COLONIAL    CONSTITUTIONS. 


419 


.state,  or  potentate,  in  alliance  with  England,  though 
the\-  are  forced  to  continue  in  the  service,  and  should 
quit  the  same  so  soon  as  they  have  an  opportunity  so  to 
do,  ant^'  return  home,  and  submit  themselves  to  the  Gov- 
ernor, yet  are  they  guilty  of  felony,  without  benetit  of 
clergy,  for  such  tlj-Mr  involuntary  continuing  in  the  ser- 
vice, after  the  li  istility  begun. 

By  the  next  clause  in  tlu  ict.  all  trensons,  felonies,  pi- 
racies, robberies,  murders,  or  conspiracies,  committed, 
or  to  be  committed,  upon  the  sea,  or  in  any  haven, 
creek,  or  bay,  where  the  adiffiral  hath  any  jurisdiction, 
may  be  inquired,  tried,  and  judged  within  the  island, 
as  if  such  offence  hud  been  committed  within  the  island, 
and  for  that  purpose'  a  special  commission  is  to  issue, 
and  such  piooeedings  thereupon  to  l)e  hi<d,  as  by  the 
statute  for  pirate-,  28»h  Henry  VIII.  i<  appoinied. 

By  tills  p.irt  ol  the  act,  tiiereis  as  huge  n  jurisdiction 
giver  to  try  all  high  treasons,  piracies,  murders,  and  oth- 
er ollences  committed  upon  the  high  seas,  as  is  given 
by  the  said  statute  of  Henry  VIII.  to  commissi(mers  to 
be  appointed  imdrr  the  great  <'al  of  England,  for  trying 
any  of  the  .said  oHV'nct;.>  in  England. 

Tin-  said  olfciices,  by  virtue  of  tills  ad,  to  l)c  tried  by 
special  coiriiiii^slon  uilliin  tiic  Island,  arc  nut  conlined  to 
offences  <'oiiimitti'(l  within  any  particular  limits,  l)ut  in 
what  part  of  tlie  world  scH'vcr,  upon  tlie  sea  where  the 
aduiinti  hatii  jurisdiction,  any  treason.  i)iracy.  felony, 
robbery,  nuirdei',  or  con.-plracN  sliail  lie  committed,  or 
supposed  to  be  couimitted,  au\  )>ersoii  may  l»e  taken, 
and  larrled  prisoner  to  the  Bernnida  islumls,  and  there 
trii'd    aud  evccuted  lor  the  .-auie. 

|{\  aiKttiier  clause  lu  I  lie  ait,  e\  er\  person  u  Im  >hall 
knowingly  cuterlalii.  liarUjr,  couci  ai,  tiaile,  or  hold  cor- 


\ 


l:'.f 


M 


u 


i ' 


420 


OPINIONS  OF  EMINENT  LAVVYERS. 


respondoiice  with  any  peTSDii  (IceuitKl  to  he  a  pirato,  or 
other  ofioiider  witliiii  the  cnnstnic'tion  of  this  act,  ami 
not  endeavor  to  ai)preheMd  Micholleiider,  shall  be  prose» 
euted  as  an  accH'ssovy,  and  sutler  the  like  pains  and 
penalties. 

A  person  may  ku()win<j;Iy  ti:;de  Avith  a  man  that  is  a 
pirate  or  other  otl'ender  within  the  act,  not  knowing 
him  to  l>e  a  |)irate  or  such  olleudcr. 

This  clause,  as  penned,  inii\-  subject  very  innocent 
persons  to  be  prosecuted  Ibr  their  lives,  iur  trading  or 
corresponding?  with  persons^they  neither  know,  nor  sus- 
pect, to  l>e  pirates  or  oli'enders. 

For  these  reasons,  (however  necessiiry  some  law  of 
this  kind  may  be  within  thcsi'  isl. aids,)  I  humbly  con-, 
ceive  this  law  not  tit  to  be  aj)i)n)ved, 

As  to  the  other  four  acts.  1  iiave  no  objection  to  eith-. 
or  r>f  them  in  ]>  int  of  law. 

Sl.M.    JI.\Ui^OlKT. 

July  :i8,  n<ti. 

(23.)  7  hi'  sa/ni  hiii'iji  r-^-  n [nrt  on  ihe  a<:ts  of  the  ■saiitc 
AS'Seml'l'i.  ill  IT'M. 

To  the    Riirlit    Honorable,  the  Lords    Connnissiouera  of 

Trade  and  IMiUitations. 

May  it  piea-e  yoiu-   l,iH(lHhips; 

In  obedience  to  your  Lordsliiji-'  onter  of  r<'ference, 
«ifrni(ied  to  me  by  Mr.  Popple,  I  have  considered  the 
80' cral  acts  pa.ssed  at  a  t;\'ncrnl  assemlilv  ol'  llermuda 
(under  the  irovernment  of  RiMijamin  Hcnnett  Ks(].)the 
3d.  (ith.  and  liVth  of  .hdy.    1701.  vi/  : 

1.  An  a<'t  for  ;in  ini|>o-iii(iii  on  li'pioi--^  and  sugars  im- 
poitcd  .ind  fimb'd  m  (hi'--e  i-lands 

2.  Aiuac!  to  prevent  the  oppression  and  extortion  of 
officerfl. 


■  ^  .,   ;-  ■mmSs  - 


OF  THE  COLONIAL  CONSTITUTIONS. 


421 


3.  All    iict    laying    an    imposition    on    liquors,    &c. 

4.  An  act  for  ostablishinj;  fast  days,  to  be  celebrated 
in  tbcse  islands  in  an  anniversary  course. 

■").  An  act  lor  the  speedy  reparation  of  the  castle, 
forts,  and  platfoi-ins  belonging  to  these  islands,  and  for 
building  barracks  with  chinuiies  to  each  fort,  where 
needful ;  and  for  raising  a  present  supply  of  monies  for 
that  cud. 

b.  An  act  to  prevent  the  evading  of  pa\uient  of  just 
debts,  and  satisiiiction  of  damages. 

And  1  humbly  observe  to  your  Lordships,  that  theack 
for  imposition  (m  liquors,  &c.  expired  on  the  ;kl  of  July, 
1708,  notwithstanding  which,  the  fart  re.  tod  in  the 
preaml)le  of  this  act  may  deserve  your  Loidshlps"  eon, 
.-idcratioii. 

It  is  recited  that  an  imposition  oad  been  laid  on  li- 
quors,  to  eontinue  for  two  year-  oidy,  at  a  former  ses- 
sions oli.ssend>ly,held  under  the  government  of  Samuel 
Day  Ks.,,.  but  that,  by  the  clerks  negicrt,  a  whole  para^ 
graph  in  that  act,  which  is  recited  to  be  tiinponii\ .  wa.s 
•  ■iifcrcd  on  record  as  a  perpetual  law,  and  that  the  late 
<invernor,  Mr.  Day,  had  extorted  .several  sumsof  ni-mey 
alter  the  d.t.'rminati(m  of  that  act,  as  if  the  act  had 
liad  continuance,  and  had  transmitted  it  to  his  late 
.Majesty  as  a  perpetual  law  to  lie  coidiiiued. 

It  is  furtiier  recited,  that  Mr.  Henuctt,  tlie  ju'oeut 
(inveruor,  upon  a  representation  thereof  by  the  as.sem- 
l>ly,  had  assured  them  to  represent  the  .same  tn  lii-  late 
Majesty,  and  tliat  the  collection  of  (be  rates,  imposed  by 
ll'at  a.'t.  should  cease  till  his  Majot^  s  pleasure  WiUi 
kiinwn. 

W  hetbei'  that  act,  entcn'd  upon    rei  onl    auuMot   the 


i  l! 


acts  ol    the  assembly  (»f  tin-  islanti 


as    a  pcrjH'tual  law, 


|-> 


422 


OPINIONS    OF    EMINENT    LAWYERS. 


and  traiismittei]  as  such  by  the  former  Governor  to  be 
eonrirnied.  I)e  yet  confirmed  or  not,  does  not  appear 
to  me. 

But  it  appears  t'rom  this  recit^al,  that  the  present  Gov- 
ernor. 1)v  his  own  authority,  at  the  request  of  the  assem- 
bly, has  stopped  the  further  collection  of  the  rates  im- 
posed b\  the  act.  passed  under  the  government  of  Mr. 
Day.  upon  the  alleviations  recited  in  this  act. 

The  net  to  prevent  the  oppression  and  extortion  of  of- 
licers,  passed  the  Gth  ()♦'  July  1701,  appears  to  be  re- 
pealed the  14th  of  November  1702,  otherwise  ♦he  said 
act  is  liable  to  objections. 

As  to  the  tour  other  acts,  I  liriv  no  objection  to  eith- 
er ol'  tlieni  ill  [)oiiit  of  law. 

Sim.  H.\rcourt. 

duly  2S,  1704. 

(2  i.)   Mr.  'W/sf.s  ()/>/((  tioti-s  t<i  an  cvt  of  the  .mme  As- 
f^(  iiilih/.  ,/s  if  iiuposdl  a  duty  on  the  importation  of  Brit- 
t-sli  iirnni tii'turr-t. 
To  the   Kinht  Honorable   the   Lords   Commissioners   of 

Traile  and  Plantation.*'. 
My  Lords  ; 

111  oliedieiii  ■  to  your  Ivordships'  conmiiinds.  signified 
to  me  by  .Mr.  Popple,  in  a  letter  dated  the  oth  of  this 
iu-tant.  !""(■]  rnary.  I  have  perused  and  considered  an  act 
of  assemlily  passed  iiitlu!  Bennuda  islands,  entitled  "an 
to  >np|ily  thedelieieiicy  of  .s«>»'eral  funds  in  these  isliiuds, 
for  liiii-.|iiiii,^  and  completing  a  house  for  the  present  ind 
^•ucceellillir  ( io, crnors,  and  repairing  the  castle  and  oth- 
er forti'ications.  and  for  delVaying  the  other  public 
char^i-  fA'  liie.-e  islands." 

Tlie  art  recires.  that  an  act  bad  bei'U  parsed,  amio 
1713,  by  which  a  duty  of  31.  i>ev  cent,  was  laid  upon  all 


OP  THE  COLONIAL  CONSTITUTIOIVS. 


423 


goods  imported  into  those  inlands,  to  be  applied  for  the 
purposes  in  that  act  mentioned,  which  act  was  to  con- 
tinue for  the  term  of  two  years  only.  It  also  recites 
that  by  another  act,  passed  anno  1715,  the  former  duty 
was  continued  for  the  term  of  seven  years,  and  an  ad- 
ditional duty  of  21.  per  cent,  more  was  laid  to  continue 
for  the  san>e  term. 

As  to  the  present  act,  though  I  cannot  say  there  is 
any  great  objection  to  it  directly,  in  point  of  law  ;  yet, 
1  think,  I  ought  to  observe  to  your  Lordships,  that  the 
purport  of  the  present  act  is  to  continue  the  last  men- 
tioned increased  duty  of  .51.  per  cent,  for  no  less  a  term 
than  one  and  twenty  years  longer  ;  and  as  a  duty  of  this 
nature  must  chietly,  as  I  apprehend,  affect  the  importa- 
tion of  British  goods  into  those  islands,  I  submit  to  your 
Lordships  how  far  this  act  is  consistent  with  the  Gover- 
nor's instructions,  more  especially  when  it  is  considered 
that  the  duty  is  not  to  continue,  as  fornicrh  .  for  two  or 
seven,  but  for  one  and  twenty  years. 

r,  ,  ,  ,  Rich.  West. 

February  13,  1721. 

(25.)  llie  ohjcctions  of  tJie  t^ww  lawyer,  to  ,si>ii'd<ir 
Jaws  of  the  mme  Assembly . 

To  the  Right  Hon.    the  Lords  Commissioners  of  Trade 

and  Plantiitions. 
My  Lords ; 

\\\  obedience  to  your  Ivordships'  conunands,  I  have 
perused  and  considered  an  act,  passed  at  Herinuda,  alias 
Somer  islands,  in  America,  in  1723,  entitled  "an  act  to 
supply  the  deficiency  of  the  several  funds  in  these  is- 
lands, and  for  the  immediate  support  of  the  government, 
and  for  the  repairing  the  fortifications:'  by  wliicli  act 
it  18  proposed  to  raise,  as  i  am  informed,  n  sum  not  nuich 


!    t^'f  4 


11^ 


II 


424 


OPINIONS  OF  EMINENT  T 


lERS. 


exceeding  one  thousand  pounds  per  annum,  and  to  that 
end  a  duty  is  laid  upon  all  goods  imported  into  those 
islands,  which  is  represented  unto  me  by  those  who 
have  attended  on  the  Ijohalf  and  in  maintenance  of  this 
act,  as  the  only  fund  by  which  the  inhabitants  are  able 
to  provide  lor  the  support  of  the  government ;  and  if 
that  be  fact.  1  can  have  noobjectiuuto  the  laying  a  duty 
in  general  :  but  1  nuist  observe  to  your  Lordships,  that 
there  is  a  distinction  made  between  the  inhabitants  of 
the  island  and  strangers,  the  inhabitants  being  to  pay  af- 
ter the  rate  of  forty  shillings  per  cent,  and  strangers  af- 
ter the  rate  of  four  pounds  per  cent. 

In  relatiim  to  which  distinction,  it  has  been  repre- 
sented to  me  as  a  reason  for  it,  that  the  inhabitants  are 
obliged  very  often,  upon  any  intelligence  of  pirates,  to 
be  throe  or  foiu-  days  under  arms  at  once,  and  very  often 
obliged  to  fit  out  after  them  to  sea,  all  which  is  a  very 
great  e.vpense  to  them,  and  which  strangers  are  not  lia- 
ble to. 

If  your  Lordships  ai-c  of  opinion,  that  this  considera- 
tion is  suihcient  to  balance  the  above-mentioned  dilfer- 
ence  in  the  tax,  1  have  no  objection  to  this  act  being 
passed  into  lasv. 

I  have  also  perused  and  considered  the  several  other 
acts  passed  it,  the  same  island,  entitled  -an  act  for  the 
better  security  of  all  such  as  are  lawfully  possessed  of 
any  negroes  or  other  slaves  in  these  islands,  whereby  to 
secure  their  lawful  rights,  interest,  and  property  of  and 
to  the  same  ;"  'an  act  for  prolonging  and  making  some 
alterations  in  an  act,  entitled  an  act  for  the  attaching 
the  goitds  or  etlects  of  any  persous,  inhabitants,  or  oth- 
ers, not  residing  in  these  islands  ;''  a  second  additional 
clause  to  an  act,  entitled,  "an  act   for    vessels    paying 


OF  THE  COLONIAL  CONSTITUTIONS. 


425 


powder  money/'  To  xvhich  (if  the  act  to  which  they  re- 
fer have  been  confirmed  hy  his  xMajej^ty)  I  have  no  ob- 
jection to  their  being  passed  into  law. 

Rich,   West. 
March  28,  1724. 

(20.)  Mr.  Lam'l's  olm-rratlons  on  cm  act  of  the  Caro- 

Ui'tt  AH.semUy,  relative  to  coins. 

To  the  Right  Hunor.iblc  the  Lord.s  Commis.sioners  for 
Trade  and  Phuitation.'^. 

May  it  pleo-o  your  Lordships  ; 
I  received  your  Lord'^hips'  commands,  signified  to 
me  by  Mr.  Hill's  lettei  of  tiie  9th  instant,  wherein  you.are 
pleased  to  desi  10  my  opinion  upon  the  following 'act 
passed  in  Soutli  C.irolina,  in  Juno  ]7-l(i,  vi/  :  '-an  act 
for  stamping,  emitling,  and  imikiilg  current  the  .sum  of 
<i:2I0,0()0in  paper  bills  of  credit,  and  Ibr  ascertaining 
and  preserving  the  future  value  tlieicof,  to  ])e  lent  imt 
at  interest  on  good  security  at  eight  jier  cent,  per  an- 
num, and  for  applying  the  .said  interest  to  the  purpo.ses 
thereinafter  mentioned,  and  for  exchanging  the  paper 
bills  of  credit  in  this  province,  and  maidng  them  les3 
subject       be  counterfeited." 

Upon  this  act  I  made  a  report  to  your  Lordshijjs  in 
duly  1747,  and  the  .several  Mej^s  that  liad  been  taken  in 
relation  to  this  act,  prevented  n>y  making,  at  that  time, 
any  further  ob.servations  than  are  contained  in  the  .said 
report  ;  l)ut  as  your  Lord>bips  are  pleased  to  desire  my 
I'lu-ther  opinion  upon  this  act,  I  nuist  ob.serve,  ihat  this 
art  is  drawn  and  worded  in  .<.>  loose  ;,.  d  incorrect  a 
iiiMiuier,  that  it  is  with  dilliculty  to  be  imderstood  what 
IS  meant  and  intended  by  it,  or  iiow  it  would  properly 
be  carried  int^)  execution.     What  I  take  it  to  be  the  in- 


li 


iXil 


y\\ 


m 
(I 


1  M 


!|1 


'I 


426 


OPINIONS  OF  EMINENT  L.\\VVE»S. 


t«nt  of  the  act  I  shall   here  mention,   iuvl  tlr  ii  (  bscrvo 
the  diflficulties  that  attend   the  e\t  •ntin::  oi'  it. 

It  appears  to  nie  that  this  province  is  at  pic-^e;  t  indehted 
to  several  persons.  u|)()n  hi  is  I^iuhtIv  e:nittcd.  the  snni 
of£10l),0!)l) ,  for  which  there  is  no  secin-ity  or  I'nnd  for 
the  pavraent,  and  that  hy  this  act  a  f;!iid  is  inleixled  to 
be  provided  for  the  paying  tlieai  oil",  and  ior  ci-eitin;^'  an 
additional  cnrrency  of  .CllO.OOO.  I}y  this  act  £2111.0(1(1 
new  hills  are  to  he  eniitled,  (  tit  cf  Avh!<  h.  ]>iils.  to  the 
amount  of  ,Cl(H),(U)()  aie  to  he  issned  lo  exchanire  the 
said  old  hills  of  the  same  vahie.  and  the  remaining 
£11(1, ()!)((  is  to  l)e  lent  out  onsecurities  at  eiu'ht  per  cent. 
interest,  five-eigl;Mi>  of  which  interest  is  to  he  the  fund 
to  pay  oft"  the  old  del)t  of  .Cl.id.dOl)  and  when  the  debt  is 
discharged,  then  the  fjorr-'n-ers  of  the  .CI  Id. (ill)  are  to 
begin,  from  t'v  time,  lo  p.iy  off  tlieir  princiiKiI  nioiiey, 
one-tenth  part  ^^'arly.  too.'tluM-  with  the  inlci  ,~t  for  ten 
years,  till  the  wdiole  is  d,  'diarunl.  and  tiic  1;!!1--  talven 
up.  The  iiiteie-^t  money  is  to  he  piiid  in  .-i'\er  i  r  u'lld, 
at  the  rates  mentioned  in  the  said  act. 

As  to  the  expediency  or  utility  of  iiis  act.  th.it  is  a 
matter  under  your  Fiordships'  cotisi(lcia1i<  n  ;  wh;it  T 
have  to  observe  is,  if  it  shidl  be  thm  u'll  ('xjh 'bent  that 
such  an  act  should  |)ass.  that  this  ,ct  ^\\\l  lie  ve!\-  de- 
fective, and  liable  to  lie  evadiMJ. 

It  is  enacted,  "that  the  trustee^  >h:i  !  ,  y  •h,;,.,.  CiOtL- 
000  ol' new  bills  for  the  prest'ut  pap(  ,•  pi  ]>  tli:;t  all  the 
bills  of  credit  of  this  province  may,  as  soon  as  conven- 
iently they  can.  be  brought  and  nut  u[)i)n  one  and  the 
same  foundation." 

In  this  clause  there  is  no  limited  time  for  exchanging 
the  new  bills  for  the  old.  nor  any  direction^  for  tlic  burn- 
ing and  cancelling  the  old  bills  when  they   ire  taken  up, 


i 


m 


Jl  w 


OF  THE  COLONIAL  CONSTITUTIONS. 


427 


whicli  is  iismil  in  tlic^e  cixstv,  ;;nd  was  particularly  pro- 
vided lo!-  in  the  act  parsed  in  tills  province  the  20tli  of 
Auiiiist.  17-)1.  Inr  the  eniittin<^  of  new  Ijills  in  exchange 
<'f  <ild  bills. 

It  is  alsoeiiiict'd  'That  fivo-oijihth  ])arts  of  the  silver 
iind  gold  wlucli  -tiall  bo  paid  as  interest  into  the  hands 
of  the  trnstee-;.  shall  1)\  them  ))e  annnally  put  out  on 
intei'  ^  at  the  rates  or  value  aforesaid,  untd  the  whole 
primipal  out  on  lioiid>.  secured  as  aforesaid,  shall  amount 
r.nlo  Ihc  sum  of  .ClMII.OOU  at  which  time  (as  it  is  therein 
..lentioned)  the  Slid  debt  of  £lUt),l)UU  will  be  entirely 
paid  off  and   (lisclia!'<i;ed." 

Then  iiil  ws  the  dii-ection  aoout  the  application  of 
tlie  inti'ie-l.  ovei  aiid  above  the  (lve-el<iliths.  v.!,;ch  is 
Yi'vy  iinperreetly  woi'di'il. 

It  i<  alsoeoa  ted.  -That  in  order  to  sink  the  said  bills 
of  cr.  dit.  so  li't  out  at  interest,  that  the  repayment  of 
til  '  prill  -'pil  sh  ille  inuneiK'o  at  the  tinie  idoresaid  ofthe 
old  d.'bt  beiiiu'  paid  ofl' and  disLdia!i;ed  :  and  thencefor- 
ward, .niniii'ily.  the  oliliu'i'r  or  imrrower  shall,  over  and 
lie>ides  ihe  interest  due  on  his  or  tiieir  i)onds  respect- 
ively, pay  to  ihe  said  trustees  one-tenth  \K\vi  ofthe  prin- 
<•in.il.  ;!nd  sncli  jtayineiits  y(nu'ly.  an;l  every  year  to  be 
111.  1  '.  -o  [jial  tlu'  wliole  princi|ial  be  fully  paid  imd  dis- 
eliaraed  in  the  s|)aee  o'' t"n  years,  and  the  sums,  so  re- 
ceived. 01  dixliai^c  i)f  the  ,  ineipal  aloresaid,  shall  be 
ainiuallv  bnnii  by  liie  t;u-tee<. 

By  these  (dauses  th're  is  no  i'tue  lixed,  nor  is  there 
any  compulsion  upon  t!u'  trustees  to  aiiply  the  interest 
money  tlioy  shall  i-.>'eive  lo  diseiiar.ij;e  the  old  debt  of 
.tllUMlOO  (wliieh  i;  the  fund  ior  tli.at  pin-po-eKand  to 
take  up  ajid  eaneid  ihc  bill  .  as  they  are  iil  ol]',  which 
should  be  provided  for,  uthcrwi..-ii  they  will  have   it  too 


IM 


Hi 


!     V 


i     ' 


:| 


I  i! 


■:  -  -  ■  m 

h  !  ■  ;  r 


428 


OPINIONS  OF   E.MINEN'.    LAWYERS. 


iiUK'h   in  their  jjowor  to  evade  the  iiiteiitioii  of  this  act, 
l)v   coiitiiuiiiiu-  a  larucr  ciiri-eiicy  than  even   by  this  art 
(iiiosely  woriied  as  it  is)  siH'Uis  to  he  intended.     Where- 
as, if  it  was   -iiaeted    tliat  tiie  trustees   should    annuall\- 
pay  the  five  e  ^hth<  nf  (lie  iuU-re-^t  a-^    they  received  it, 
tow.ii-ds  p.iyiii';- oil'  and    i':diitii:    in    the  1)111;;    for  the  ohl 
del)t.  until  the  whole  of  the  olil  debt    is  diseliar^a'd,  and 
the  !>ilN  aie  eancelled.  r-y    to    place   out  the  interest  an- 
nually on  s;Tiirifie<  (for  whicii   tliis    act    does    not   n'wv 
]>rop(\'    dii'ectioii<)  till    the   accumulated  sums  make  u|) 
JClOMUiiK  ;ii.d  then  I.-  oMiirod   to    di.^cliar<!;e  all  the  hills 
for  the  old  dei>i.  and  t.i'a'  the;  up  and  can  ■  d  thei  i,  and 
I'rom  th.it  tim-  tin-    !)iirrow<  rs    of  the    Cll'i.dUO    whlcdi 
•win  he  the  .)ul\   iiiih  rciinlnlii::.  t)  U'liin  to  pa\  auuuaU 
l_\-  onc-trntli  piiri  of  tlieii-  ddit  and  interest,  till  all  tiicir 
hills  ;ire  p:ud  and  ciiii  cllcd  ;    \'.\<    would,   in  a  coiu'se  of 
years,  >nUv  ail  the  hdl-. 

It  is  aisi)  enacted,  •'I'lnl  the  iuf 're-t  muni-N-  >hall  he 
l)aid  ir  .^[Miii-h  a- Kurdish  silver  coin,  or  in  golil,  at  tho 
ratc>    linifin    mciuiiinc(|.  " 

By  tlic  act  of  Q-.een  .\uuf  the  rair-  ol'  furdmi  (•,iiii> 
in  tlio  eolonl<'s  and  pliuiiaticii^  ar»'  a-ccrtaiued  ,  and 
thiri  province  eaiuiot  ilier  the  saiu",  hut  iiy  a  \u\\  law 
made  i'or  thai  purpj.sf.  This  is  desi^^ncd  to  !,.•  n  new 
law,  and  intdudes  En.i,'li.-«h  silver  coin,  Uicrelore  it  iiuist 
be  saliiiuttod  to  your  Lordships  how  to  advise  any 
new  law,  sett'ig  a  rate  or  value  upon  siudj  coin. 

f-'a-  the  reasons  I  have  •K.'ibre  given,  however  it  may 
be  ihouirht  cNprdicnt  and  useful  to  pa.sH  an  act  for  the 
pnr])OM's  intended  hy  this  aet,  1  am  of  dianlon,  th^t 
thi.s  net  i-.  not  lit    to  p;i-s  into  n  hw. 

M.\T.  L.VMB. 

Laioolu'.i  luu,  Doc.  14,  i74b. 


OK  ThK  COLONIAT,  CONSTITUTIONS. 


120 


(-!/.)    Mr.  Wi.sf'H  (M-rratloiLs  „:>  th,   •nnil nuance  of 
the  rirniii,'  arts  of  the  Jamaica  , '  s.s-H„h[ii. 

T.»  111.'  I{inl,t  H,m..  the    Lonls  (',„nn.i<si,,iH"rs   ofTiM.lo 

.Mill   l'l:mt;itiMii«. 
Mv  I.<,nls; 

InMhr.lirnco  to  your  Lordships'  ooiuumn.Lv  1  Imvo 
coii-i(lciv,|  the  followinj^.stiitc  ofii  cim'.  ji..,|  ,,„,;,  vi>. 
latiii^r  to  SOI,:,,  acts  of  Jiiniiii.'n,  tnniMiiitl.'.l  to  i„r  by 
Ml'.    I'"|'l'l*'-    i"   liis    letter    of  tl„.     I7;li    ol'    l-\.|„  uarv 


*- 1-. 


Si'vcral  laws  of  Jaiimira  \v,.|v  <-(,!,liiiii..,|  l,v  Kin- 
<'linr].-  II.  in  thrynir  JOSl.  f<.i- tlir  trnii  nl' twrnty-o,-.'," 
ycai-;  only,  (liiriui;-  wliich  time,  vi/,  :  in  l|„.  v,,,,-  IdSs,  u 
I.  N.'Hii.a.'t  pass...!,  suppos,.,!  (o  haw  l.m  perpetual, 
iiiii  newr  eoiilint  ("d  l»y  tlic  cniun. 

In  1711."..  a  new  revenn.'  ad  pas^  .1.  Cr  tl..'  v, ,,„•,■  .,f 
"".and  la.-nt.N  w-a:  .,  v.-|u>rel,y  ail  t  li.' laws  of  .lumaicu, 
r.M-in.Tly  eunlirnied  I'or  twcnt  >  .-.,ne  var^.  I.v  KintJ 
Cliailc<  th..  Second,,  were  fiutli.T  eonlnuud  l.-rthr  l..rin 
"I'thit  aei.  win.d.  vviis  for  ( w..,,!  \ -one  year-  looi  t-  cx- 
ceploe.;  u  r.'vcnue  act,  pa.-od  in  lbs.;  ^nid  a  ^ih-.- 
M'"'"'  :"  I  'I.  Ih.'  \ea-  IdSS,  uhi.-h  aiv  r.p.  :dr  !  I.v  the 
ah.veiueuliMn.Ml  lawof  I7(i:],  h„f  the  last  inenlinn,..! 
law  Ijein;:  oidy  tenipwrarv,  and  it  h.in.^  e\puv-lv  de- 
ciaivd  therein,  that  the  sai.l  a.l,  and  nil  mid  every 
diuise  or  cdanves  therein  eojitaine.l,  sjiall  he  and  renuiin 
hif..ree  for  Mm-  -pari-  o|  twenty-one  years  fmni  the  l.st 
efOctoher,  M^v)  :  tpi  ny.  Wh.ih,  i  t  hr  lu..  revenue 
nct«  of  11183,  and  1G88,  therehy  intc  nded  to  ho  repeiiled, 

nre/dHoliiteIyrep,.al..d,,r(.tdy.HUf.pended,dnriiiu  the  time 
preserihed  for  the  eontiuuanee  of  the  net  in    ITtKj  \ 

I   have    ulw   considered     th.'    Ivv..    am cxed    cluudea 


i  H 


I 


130 


OPINION'S  OF  EMINRNT  LAWYERS. 


of    the    a1)ii\  t"-iin'iitioiuMl    reveiuie    net     of     1703. 

Evi>r\-  net  whal-^ocviT.  that  pas.^io.'^  into  law,  is  in  \t- 
solf  porpt'tuul.  iniU'>- thon'  are  words,  in  tlif  hody  of  it. 
to  (It'tcrniine  it.<  duration. 

And  in  r<dati(>ii  tn  the  rcviMUU:  art  of  i7>l->.  I  niii-t  lici:- 
leave  to  oli^crve.  that  the  clan.se  lor  its  (hn'ati.«n  is  alto- 
tretlier  in  the  athrinative.  -'that  it  sliall  he.  i.nd  i(Mnaiii 
in  foree.  for  the  si)ace  of  tuenty-oni"  years :"  hut.  then, 
as  tiiere  are  no  !U'i:ative  words,  l»y  wliieh  it  is  enartcd 
that  -it  sli  11  continue  so  loiijr,  and  w>  hmuer,  '  it  nia\ 
he  nia(h'  a  (|ne-ti()n  in  law,  whetlier  that  act  of  iTOijis 
not,  ■  I  itsell',    peipetiial 

Tile  reveini*^  in  .l.iniiica  has  heeii  ])i(i\ide(l  fi;r  hy 
two  several  , tit-,  one  in  idSS.and  the  otier  in  I7il-).(fnr, 
as  to  that  in  liiS/.,  there  is  no  dout)t  rot  lliat  i-  not  in 
foi-ec.)  and  till' act  of  jiiSS  is  said,  in  the  <tate  of  tlie 
ca.se.  to  h:i\e  liccn  enacted  lor  a  |M'i-|>etnai  law,  and  .  nn- 
se^iuenth,  v,  oidd  lie  still  in  force.  wa>  it  not  lo,-  the  re- 
pealing cloi-e  in  llu'  act  of  l7<>-i  Ihil  :i<  I  -n|i|i..M'  it 
is  indillerent  to  f lie  i;Mveriunenl.  whether  thcrc\cnuc  i- 
s<.*ttl«'d  cil  luT  li\  oih'  or  the  other  of  Ihe-e  .ict-;.  -o  | 
thini-;  it  i-  in  '-t  certain,  that  one  ol  the  tw^  nuist  h(> 
still  ill  force,  for.  if  the  act  of  I7t'">  lie  c(  ir-tnied  to  he 
not  now  ill  fore*',  hut  to  he  teniporar\,  then  the  act  of 
Kiss  must  revive,  in  reason  that  the  opei ation  oi' the 
act  ol"  17(I3  cease.s  and  determines;  hut  if  the  act  of 
1(')SS  he  supposed  to  lie  al)^(tlutely  repealed,  it  enii  only 
he  hv  roasontliat  there  aic  not  any  negative  Word.s,  aiul 
no  longer,  (as  is  u-uai  in  all  the  tenip«)niry  uet-i  pa>t!e(l 
in  Kii^land,)  to  determine  it.s  duration  ;  and,  fonso- 
quently.the  net  of  17<>3.  and  the  provision  lor  tht  vc- 
uue  therehy  enaeted,  must  he  still  in  lull  force. 

Uii  M.   West. 

March  li,  17::  1-22. 


I 


r  SI 


OF  THE  COLONIAL  CONSTITUTIONS.        431 

(29.)   Th'  oh-srvratlons  of  tk,  Attovuey  ami  Solicitor^ 
('<  wral.  R,,.l,r  and  Mnrnuj.  on  the  arts  of  the  Jamaica 
.  [■•<y< iii'Jif.  ni  IT-") I. 

T-  the   J^iol.t  Hon.  tlu.  Lonls  Ccv.nu..  -loners  Ibr  Trade 

and  Plantations. 

Mav  it  [.lease  your  Lordships; 

In  pursuanee  oi'  your  Lordsl.ips'  desire,  signified  to 
usi.y  .Mr.  h.vvnall,  in  his  h-tter  of  the  IM  of  Fehruarv 
ln.4  sett.n^  (Wrth.  that  your  LonLhip.  ha.i  taken  into 
<.msHk.ration  our  report  up„n  fo.n-  arts  pas^.l  in  the 
Hian.i  of  Jamaiea  in  November  and  J)eeend.er  l;-,i 
"^"1  i'"l  'nv.i  attended  hy  the  agent  for.  and  hv  sove- 
'■''"'  ""'  l"'nr,pal  uierehant...  and  oth..>  tradn.-  to 
"nd.nten.,e,i,n,  thatislan.l;  au.i  thev  ha vin:,  ex,M-esJ 
;"'  ''  "■■"^'•^^•"  tl'.'t  thevha.l  not  an  npp.Mtunilv  of  be- 
'"  l'»''id  !.eln,v  us  upon  Ih.-se  aets,  uhen  ihev  were  un- 
'I-'-  •""•  .-nsideration  y.-.-r  Lonl>hip<  had  directed 
'iK'mtobetrausn.itted   haek    to   us  lu,- „ur   mr.hem.n- 

-dorat.on;  and  that  we  should,  ,-   ,eport    thereon 

^t;it-tov,,ur  l,on|>hipsthepu-tieK'...r  ohjeetions  -hioh 
w<'^a\  ,M  our  loru.er  report  we  have  to  each  ..f  fho.se 
''^^-■'""'   '"    •"^"•'•'-    '".d    sulw,;„HV      t.the    end   that  if 

"'^'>^^' "I  '"'laid  before  ll.s.VI,,,.,,,-    for  ln<  dis.ppro- 

l'i"t>'«K  a-  having  been  passed  witlu.ut  ejau^.-s  of  su.s- 
lH-ns,on,  contrary  to  the  twenty-second  ..f  H  .Maicty'H 
mstrncti»ns,\our  Lordships  n.av  be  enab!  :  to  pnint 
out  the  rmrticular  objections    |n    th..  (*  ...r   an.l  di- 

rect him    to    ^ret    M.ch  parts  of  thuu         .-uall  be  for  His 
.Maie,sty-H  Ker^  i.v  and  (be  pubbc    util.tv   and  advantage 
"f  the  islaml   re-enar,ed  with  proper  c;,.,.,es  of  ..u.pen- 
^"•n.     Also  tran>niift,ng,b;v,Hu-Lonlships' direction, 
tl'o  two  luUuwing  uct.^  pa>,.cd    in  ihe  xud  i.land    ,n  N.. 


IN 


f  'I 


H; 


;     i 


t 


V  i- 


432 


OPINIONS  OF  EMINENT  LAWYERS. 


vember  and  l)c'<'('iiil)or,  JToI,  the  latter  ol"  which  had 
ffbcn  pomplaiiK'd  ol' hy  Mr.  Forbes,  the  prevost  marshal, 
as  invadinix  the  ri^Iits  of  his  oflice,  and  do.'^irinji'  om- 
opininii  lheML'ui)()n.  viz  :  '-an  act  for  niakiuj;'  n-ood  and 
wlioicsoino  ppDvisioii,  lor  raising  and  o.sta)>lishing  the 
creiHt  of  thi.<  island,  and  repealing  of  an  act,  entitled  a 
suppiciiu'iital  mid  explanatory  act  ;"  -an  act  ior  the 
fm-ther  r  ,idatioii  of  the  provost-inurshal's  pruceedirgs, 
estalilishing  pi-icrit  V  of  judgments,  quieting  possession  of 
slaves,  pwrtdia.sed  upon  i'cn</itioni,  and  for  limitation 
upon  l)onds,  mortgages,  judgments,  and  other  s;,'ciii'itii.'s, 
and  eni])o\vering  the  assisliiut  judges  to  sign  wiit  .  and 
other  process." 

We  havi'.  according  to  youp  Lordships'  desire,  re-cou- 
sideu'd  I  111'  t'lini'  arts  of  us-^tnnhly,  Jiassrd  in  ,Iri;iai''a  in 
No\eiiilici'  and  Dcci'inher,  1701,  and  have  al  •'y^r-oasidtr- 
ed  tile  two  otln'c  a>t-  ol'tiu'  same  assembly,  menlifvned 
ill  Mr  ['nwiiafs  letter,  on  which  }'our  liOid-hips  are 
pleased  to  de-ire  our  i>pinion,  ami  have  In-eii  at  tended 
by  John  Sharpe  Ksij.,  us  for  the  waid  island.  u|M)n  tiin>e 
act.-*. 

We  dill,   ill  iMir  I'lHiner  report   of   tlie  li'Jd  of  .innuiirv 

liVfst,  eonfiiie  (mr>>  1\('>  t.  une  general  reastm  Uiv  ilisap- 
provlug  the  lii>t  Iniir  acts,  arising  from  their  Ijeing 
passed  without  a  clause  of  suspension,  in  breaeli  of  liie 
twenty-.secoml  arti(de  of  the  (Jovernor  s  iir-truetlmi-  ;  .n 
tile  uliedieiiec  t<i  tliat  instriitdit  11  lias  Ikcii  ;il\\a\s 
thiiuglit  i.i.ivi  iiece-sMi-y  to  ',e  yecnrt  li,  iiiid  can  lie  nn 
wa\  -o  etl"ectually  seemed,  a.M  b^  constanti\  il-'ii\  iiig  the 
royal  approbation  to  every  act  passed  in  eoutradictio)! 
to  it  :  and  we  apinilieiuf  the  suiferiiig  aii\  plain  de\iii- 
tioii  from  lliat  iiih  t<  t;ike  idVect,  will  lie  attended  with 
incunvenienco  to  11..  Majesty  and  his  sulyccts  both  licrc 
and  abroad. 


t)K  .Ml.  coi,(».\i\i,  (  o.\siiTri;().\.s.  433 

iJut  there  arc  uilmv  ;>l.jcction.s    iu  oaeii,  .siiiiicieut  in 
our  upinioii  to   u-w^-nt   His  Majesty ".s  appn.hation.      As 
t.)    the  iir.st^  <hiiik'(l    -an  act.   [.rwiuiiis    that  all    the 
.jii(l,i;cs  of  the  sunivn.o  coiift  of  judicature  of  t.hi.s  island, 
shall  hold  tlieirolliees  ,i,!ai,i<!i,i  .sv  />cn<^  m.^.'^eriitf,"    it  di- 
reetly  afl'eets  the  royal    i»rero<.-ative  in    a   point  of  great 
moment.  a.,d  for  whieh  no  .j.Hiision  is    pretended  to  he 
-•iveu.    In-  the  ahuse    of  aux     pc.wer  eonnniftcd    to  the 
(invernor  ;  or.  if  tlieiv    had  iircu  any.  it  woidd  he  nuich 
more  suitahle   to  His  Majesl/^  honor  and  diu-iniy  to  re- 
form it  hy   his    own  auth.iiilv.    fully  suiiieient  Im-   tiiat 
purpose,  in  sueji  manner  as   to  his  royal  wisdom  slicuhl 
sceiumeet.th  Ml  hy  th<'  imposition  of  an  act  of  assemhh  ; 
n.ir  docs  it  a])i.ear   to  us.  that    in   the  situation   and    ci'r- 
cnii^taiices  in  which  thi<  l-land  ^rtue  othei'   .Viuerican 
I'laulatioiis    >land.  it  \vc,,  ,!  hca.Kisahle.   cither  for   the 
nitere-^t   of  tlic  plantation     rhemsolves.  or  oi' ( ireat  Brit- 
aiuthat  thej'udjros  in  lli.-      rmcishould  hold  their  place.s 
ijiitiiiii/ih  .vc  hene  (je*t-ftrhit 

As  to  the  second  act,  entitled  -an  act  for  choo-ino' 
the  meiuln-rs  of  the  assend.iy  of  tlii-<  i>land  l.\  l,al- 
Int.  and  f»r  the  more  eHectiial  prexiitini;-  ahu-cs  and 
iiidirccl  piactico.s  in  electi(ms  :"  «.s  tiie  pre  cut  method 
of  election  liii.s  heen  estahlish.-d  |,y  virtue  ot  liis  Maje.>^- 
ty';*  iu<tructiou>.  :iud  loni;  usajie,  asreeaMc,  in  ^■cueral, 
to  tli<'  practise  here,  and  in  all  the  oihor  plaulat  ions  ex- 
cept one,  imd  nothinj^  lias  happened  iu  this  to  '  ihe 
inconvenience  of  it,  \vc  thinU  it  very  dan^jerous  a\u\  im- 
prudent to  make  MO  ureal  an  innovation  as  is  intended 
hy  tiiis  act. 

.\-  to  the   thii-d    ad.   (Mititied   -an   aci   lor    e\plaininii 
iiii  act  ;or  the  lintlier  (piictini:   posnessions,    and  reirula- 
tinj<  resiirveys.  and  for  estuhlishiin.'-  icnutcd  houudarie-^ 
66 


m 


■X 


!" 


iU 


OPINIONS    OF  EMINENT  LAVVVERS. 


li 


ih 


I 


we  tliiiik  it  liy  no  means  advisable  to  onlinii  a  law 
which  has  a  rotrospect  lor  twenty  years,  iVoin  the  year 
1731,  (when  tlie  I'ornier  recited  act  was  made.)  in  pouits 
Avhich  do  noi  appear  to  have  lieeii  within  either  the 
words  or  meaning  of  that  act,  and  without  exce|)ti!>j; 
casf^s  that  in;iy  have  been  adjudiied,  or  where  the  i)ar- 
ties  have  enjoyed  otherwise,  and  whose  (piiet  and  leji,al 
possessions  may  be  disturbed  by  an  act  [)assed  nnder 
the  color  of  (jiiietin<;  possessions. 

As  to  the  t'ourth  act,  entitled  •an  act  |i>r  appointing 
commissioners  n['  ///'■</  j/rh/'i.  and  enlaruiiig  ti:e  jurisdic- 
tion ol' the  justices  of  the  peace,  in  iiiattei  >  ol  debt;" 
this  is  soexten^ive  a  change  in  the  con-t itntioii  ol'  ihe 
government,  with  res[)ect  to  the  administration  of  jus- 
tice, and  >o  great  nn  eucroatduacnt  upon  tiic  ro\ai  pre- 
rogati\e.  to  which  the  i-ret'ting  and  c-tabli-hing  t-oiirts 
of  justice  belong.-,  that  we  I'annot  think  it  advi-alile  to 
admit  of  such  a  preeedent.  noi  do  we  think  that  the  va- 
riation proposed  in  thi'act  would  bi'  licue'liiial  to  Ili> 
Majesty  s  subjects,  ifcairicd  into  e\t-ciil  inn. 

As  to  the  liftii  act,  (  ntitlcd  an  act  lor  making  good 
and  wholesome  provision  for  raising  and  e-tabli'>hiiii: 
tile  credit  of  this  i-hiiul.  and  re[iealing  of  an  act.  entitled 
a  sup])li'mental  and  explanatory  act  :'  the  part  relating 
to  the  inci'ea-e  of  co-t.-  -cems  to  ns  unneic-->;u\  and 
dangeroii-.  the  praetiee,  .dr-cady,  ofgi\ing  cost-,  iiiclud- 
iug  counsrl-  fees,  and  .ill  otiier  exprn<e-  that  are  rea- 
sonable :   and  morr  ought  not  lo  be  allii\\,M|. 

'I'lie  clauso  that  pre.-icribes  a  new  writ  of  execution, 
pr(jceed<  partl\  on  .1  mi-take,  a-  if  lamis  are  now  subject 
to  judgment^  lor  drbi,  wjiich  tli.-\  are  in  fact,  both  liy 
thegeiieral  l,iw  andtbr  Ibiti-haet  of  the  liith  of  hi.s 
present  Majesty,  when  tiie judgmeiit  is  aguiast  theorig- 


OF    THR    COT.OMAT,    CONSTITITIONS. 


435 


f     , 


ma\  (lol.tor;  an.]  if  against  l)is  heir,,,-  oxc-cntor.  his  own 
huuU  ow^ht  not  in  ),<•  suhjecUHl,  unless  h.  ha.  e-mhez- 
/K'.i  his  testator's  assets,  as  this  aet  uiyustly  does,  with- 
out (hstinction. 


Tiie 


''lause  lor  giving  five  per  eent.  to  present  credi- 
tors ,n  (Ireat  IJritain.  Tor  n.oney  h-nt  there  L^  dehtors  in 
;''""="''^'-  '"-='>!s  eithe..  to  give  then,  an  interest  thev 
i'ave  ...nv  no  right  t...  or.  i,y  confi.iing  then,  to  five  pe"r 
'•^■■><-  ''•  take  auay  part  of  their  right,  where  the  eon- 
•rartwasiora  higher  rate.  In  I.oth  ...ses  th.  law  is 
unjust,  and  we  think  it  not  proper  to  he  approved 

Ah  to  the  .sixth  aet,  entitled^  an  aet  tor  the  further 
'H^SMlatiun  ,.r  the  prov<.st-n.arshars  proceedings,  estah- 
li^lnng  priority  of  ,jndi,n.ents,  ,,nieting  possessions  of 
slaves  I>-'.Thas,.d  upon  .,.././....,  and  n.rlindtationnp- 
""  '"""'^-  •"••'•l^'^M''^  i-nlnient-  muI  ..ther  seenrities  and 
^'"U-uvring  the  assistant.,,.  -  to  si^n  Mri,.  and  nther 
process  :'    tin-  elau.se  tiiat  estai.lishes  certain   ivos    with 

7'^'*"'" '■"•'""    ^^-^'^  ''''^'"  '-on    paid  already  h'evond 

tiK'iji    has  an  ii,,j,,st  retrospect. 

''''"'  l"oliil.itinu-  writs  of  c.vecntiun  to  i..,„,  ,iii  ^he 
'H'McnurtdaN  alter  judguH-nt,  is  an  unn,  ces-arv  and 
.langerous  del.v  nt, jnstice.  and  n.ay  give  great  opportu- 
H'ti.-ol    liaud,  cu.val.nenfs,  and   cn.l.ez.zlenients 

The  ciauM.  relating  to, Hvsnmed  satisfaction  of  n.nrt- 
frages,.v,.  ,,.„n  < -.■nty  year.  ac,,uie...ence.  &c.  i.  u  ith- 
""^■"'•^    I'MHiatn.n,    ur  eNceplinn.    arising    from  tJ>e  cir- 

cmn.stances  of  age.  place,  or  .vacitx.  of  either  creditor 
<"•  •'^'''•"'•-  ^"-d  i,as  a  v,.ry  u,,|n>t  retrospect;  an<!  we' 
thiid<  this  act  not   on.p.T   to  !„•  appmved. 

J).   ItYnKfi. 


Si\     ! 


i  )  ;1 


M 


I  ! 
)  ■  i 


(- 


I- 


43G 


OPINIONS  OF   KMINF.NT  I.AWVF.nS. 


(3(1.)  J/y.  IIVv/'s-  ()l}.'^irr((li()ii.s  oil  (1)1  ilii  nt  tlii-  Vir- 
(jh)iii  A>^--'<tin'ilii,  tii'l  ihf  in  jn'(>hil>it  ilr'  iniportiitii»i.  of 
t'o/iri'fx. 

To  tlic    Ui^lil  UoiKuaMc   the  Tjorrls   ('oimuissionors    of 

Triid"  and  I'laiitatioii-^. 

Mv  Ijonls  ; 

1.11  ohcdicnco    to  your   Lordships'   coinniands,  I    have 

peiaisiMl  and  eonsiderod   an  ad  p;isst'd  in  thi-  proviufo  of 

VifsJiinia,  cntitliMl  '•■  an  art  \'nr  auuMidint;-  the  act  coneeni- 


iiiij;  sei'vant 
ol"  convii'js 


and 


4; 


IVC; 


nd    for  the  better    <;(i\  ernnieiit 


iniported.  and  tia-  tlie  further  preventing  the 
clandestine  Iran-^pni'laiinn  ofpersons  out  ttt'this  eoh)ny." 

Ti^  ^ueh  part  of  thi-;  act  a<  rehites  to  the  .ujovernment 
of  their  servants  and  daves.  1  have  no  ol)jection  ;  hut, 
then,  1  nuist  submit  the  other  part.  \vhi(di  rehites  to 
convict';  tran-^portcd  from  Great  Britain,  to  }our  Jiord- 
-^hips'   eonsi(U'ration. 

l?v  act  of   parliament. 


Pi^rson.s    com  k 


aui 


1    oti 


u-r  <  rune 


are 


ted    of  felonies 
lialiie    to    \tr    tiansportt'd    to    the 


LUiericau  colonic 


tlu're   ti 


1    lie  (tl.^pn>i 


d  of  to  the  plan- 


ters, for  several  tenu<  of  u  u-.  This  act  of  as>ei  ihly. 
tluM'cfore,  recites,  that  liaiid;  have  lieeu  coinmittcd  hy 
till'  [ler-oiis  eiitru-tcd  with  the  transportation  of  felons. 
v<:c.  ami  that  mam  ci  iine>  had  liecu  conuiiittcd  in  that 
colonx'  liv  the  traii<p.)itcd  |)ci<ons  :  for  rciiu'dy  of 
\vhi<di  it  is  enacted.  Iir>t.  tiiat  no  person  importinu-  fel- 
on-. \'c.  into  that  ]iro\  iiice,  shall  dispose  of  any  convict 
tor  a  loss  toriu  of  years,  or  time,  than  what  such  comict 

a-  tin-  act- 

in«i  otherwise  than  what  i.s  here  pro\  iUed  for,  is  aii 
nbufic  of  tlic  lawhere.  as  well  ns  of  thr  planters  there. 
I  think  this  clause  is  very  proper,  and  ttiat  the  penalty 
often  pounds  upon  ofl'enderK  is  very  reasonable.     .Vftor 


was  oriiiinally  ordered  to  be  transported  \\ 


OP  THE  COLONIAL  CONSTITUTIONS. 


437 


this  thev  enact,  that  if  any  convict  i)oi-,s()n  he  permitted 
to  go  on  shore  at  hirgc  unless  lie  l)e  actually  sold  or  dis- 
posed of(.)  some  master,  that,  then,  the  master  of  the 
ship,  wherein  such  convicts  are  imported,  shall  forfeit 
twenty  shillinj,^-^,  whenever  any  convict  person  shall  be 
appiehended  on  shore.  If  the  mischief  they  would  rem- 
edy by  this  clause,  be,  that  the  importers  of  ccmvicts 
permitted  tliem  to  go  at  large,  witliout  over  disposing  of 
tliem  lo  proper  masters,  the  penalty  sreins  to  be  much 
too  small  to  answer  that  end. 

Alter  this  they  enact,  that  .nery    master  of  a  vessel 
who  imports  any  convicts,  sliaH  -ive  bund,  upon  condi- 
tion that  he  shall  not  suffer  any   convict  to  go  on  shore 
in  the  province,  till  he  be  actually,  and  huna  fide,  sold 
and  disposed  of     To  this  clause  it  has  been  objected  on 
bchalfofthe  persons  who  contract  witii  the   Lords  of  the 
treasury  for  the  transportation  of  U-lons,  that  if   it  sub- 
sists they    cannot  execute  their  ( ontracts,  since  it  obli- 
,;;es  ihcm  to  keep  to  their  ships   'ring  there,    until    they 
h;ive  dispo.sfd  of  all   their   convicis    on  l)oard,  when,  as 
tiiey    cannot  a/ford  lo   keep    their  ships  there  .so    long, 
\Nithout  taking  in  a  loading  homewiird^     I    am  not  mer- 
chant enough  to  know  what  force  tlie.v  is  in   this  objec- 
tion ;     but.    according  to   my    apprehension,    the  same 
ei-d  might  be  obtained  by  obliging  the  persons  on  shore, 
to  wli..m  the  convicts  should  be  consioned,   and  not  the 
masiers  of  ships,  to  give  security,    not  to  permit  the  con- 
victs t,,  ^r,,  j,t  large    )r   t)iit  of  ciistoil\    iii    the  province, 
until  they  should   be,    as  above,  aduiilly  and    bona  fi^ie 
dispo.^eil    of;   since,  l>y  that  mean-,  tlic    country  would 
be  as  elfectually  secured  against  an\  mischiel    the  con- 
victs  might   do. 

In  the  two  following  clauses  it  is   enacted  that  every 


4i' 


■A 


>   \ 


:  H 


I 


■I.- 


I'   i'l 

V  s  i 

ill 


m 


&  K 


438 


OPINIONS    OP     EMINENT     LAWVERS. 


person,  who,  upcni  importation,  lias  the  disposal  of  any 
convicts,  shall,  l)et()re  he  be  permitted  to  dispose  of  them 
give  security  in  the  penalty  of  iiliH),  for  the  f^ood  be- 
havior of  such  convicts  during  the  space  of  two  months 
after  they  shall  be  disposed  of  to  any  master  ;  and  that 
every  person  who  shall  purchase  any  of  the  said  con- 
victs, shall  immediately  give  secmity,  in  the  penalty  of 
ten  pounds,  for  the  good  behavior  of  such  convicts,  dur- 
ing the  whole  time  for  which  they  are  respectively 
transported. 

To  these  clauses  the  objection  is,  that  they  amount  to 
a  prohibition  of  any  convicts  being  imported  into  that 
province,  since  the  contractors  for  transportation  have 
represented  to  me  that  they  cannot  get  any  masters  of 
vessels  who  will  give  the  above  mentioned  security,  nor 
can  it  be  expected  that  any  persons  will  purchase  any 
of  the  said  convicts  ujwn  those  terms. 

The  transportation  of  felons,  &c.  is  by  act  of  pai-lia- 
ment  ;  and,  if  the  example  set  by  this  province  should 
be  followed  by  the  other  colonies,  the  execution  of  the 
laws  concerning  transportation  will  be  rendered  wholly 
impracticable. 

And,  therefore,  upon  the  whole  matter,  if  your  Lord- 
ships shall  think  that  the  above  mentioned  clauses  will 
amount  to  a  prohibition,  I  am  then  of  opinion  that  this 
act  is  not  proper  to  be  passed  into  law  ;  but  if,  on  the 
contrary,  you  shall  be  of  oi)inion  that  they  imjiort  no 
more  than  a  reasonable  .security  to  the  inhabitants  ol" 
that  province  against  any  mischiefs  or  crimes  that  may 
beconnnittvd  by  the  convicts,  I  have  then  no  objection 
to  the  act, 

Rich.  VVest. 
July  3,  1723. 


OF  THE  COLONIAL    CONSTITUTIONS. 


439 


(31.)  7  he  oUermitioas  of  the  mine  lawyer,  on.  an  act 
of  tilt  mme  Assemhly,  temUny  to  prevent  free  bkich  men 
from  voting  at  elections. 

To  the  Right  Hon.    the  Lords  Commissioners  of  Trade 

and  Phintations. 
My  Lords ; 

In  obedience  to  your  Lordships'  connnands,  I  have 
perused  and  considered  the  several  following  acts,  passed 
m  the  province  of  Virginia,  in  1723. 

And  as  to  the  act  entitled  "an act.  appointing  a  trea.s- 
urer,  and  empowering  him  to  receive  the  monies  in  the 
hands  of  the  late  treasurer,"  I  have  no  objection  to  it, 
in  point  of  law.  only  I  would  (observe  to  your  Lordships^ 
that  it  seems  to  be  now  a  practise,  in  all  the  vVmerican' 
colonies,  for  their  respective  general  assemblies  to  as- 
.^ume  to  themselves  the  nomination  of  all  otiicers  rela- 
ting to  the  revenue. 

As  to  the  act.  entitled  'an  act,  directing  the  trial  of 
slaves  committing  capital  crimes,  and  for  the  more  ef- 
fectual punishing  conspiracies,  and  insurrections  of  them, 
and  for  the  better  government  of  negroes,  luulattoes.  and 
Indians,  bound  or  free,"  there  is  in  it  a  short  paragraph 
by  which  it  is  enacted  that  from  and  after  the  passing 
the  act,  no  free  negro,  mulatto,  or  Indian,  what.soever. 
sball  have  any  vote  at  the  election  of  burge.s.ses,  or  anv 
iither  electitm  what.soever. 

Although  i  airree  that  slaves  are  to  be  treated  in 
such  a  manner  as  the  proprietors  of  them  (having  a  re- 
gard to  their  mnnber)  may  think  necessary  for  their  .se- 
curity, yot  1  cannot  .see  why  one  freeman  should  be  used 
wor.se  than  another,  merely  upon  account  of  his  com- 
plexion.    1  have  no  objection  to  the  putting  such  limits 


»      . 


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WIBSTfR  N  Y     1*^»0 

<l\h\  172  4J0J 


I. 


440 


OPINIONS    OF  EMINENT    LAWYERS. 


and  conditions  upni:  those  persons  as  may  be  onfnm- 
chised  for  the  iiilaro.  as  they  please;  but  to  vote  at  elec- 
tions of  officers,  cither  for  a  county,  or  parish,  &c.  is  in- 
cident to  every  freeman  who  is  possessed  of  a  certain 
proportion  of  property,  and.  therefore,  when  several  ne- 
groes have  merited  thcii  iVcedom  and  obtained  it,  and, 
by  their  industry,  have  acfjuired  that  proportion  of  pnip- 
erty,  so  that  the  above-mentioned  incidental  rights  of 
liberly  are  actually  vested  in  them,  for  my  own  part  1 
am  persuaded  tiiat  it  cannot  be  just,  by  a  general  law, 
without  any  alletijaiion  of  crime,  or  other  demerit  what- 
soever, to  scrip  all  free  i>ersons  of  n  l/lack  complexion, 
(some  of  whom  may,  perhaps,  be  of  considerable  sub- 
stance.) from  those  lights  which  are  so  justly  valuable 
to  every  freeman.  lint  I  submit  the  consideration  of 
this  to  your  Lordsiii[)s. 

As  to  the  sewral  other  following  acts,  passed  in  the 
same  province  in  the  said  year,  171^3,  entitled  'an  act 
for  the  settling  and  better  regulation  of  tiie  militia;' 
"an  act  for  the  better  .securing  the  paymentof  levies,  and 
restraint  of  vagra  it  and  idle  people,  and  for  the  more 
effectual  discoviTv  and  pro,secution  of  persons  having 
bastard  children  ;  'an  a(>t  for  enlarging  the  juri.sdic- 
tion  of  the  coiui  oriln-^tiiigs.  in  the  city  of  Williams- 
burgh,  within  tlie  limits  thereof;'  •'  an  act  for  raising  n 
public  levy  ;'  •  ,ui  act  for  reviving  an  act.  entitUvl  an  act 
lor  .security  and  (Icrcncc  of  the  country  in  times  of  dan- 
ger ;"'  ''an  act  tor  dissolving  the  parish  of  WilniiiiKton 
in  tiie  counties  of  James  City  and  Charles  (Mty,  ami 
adding  the  same  to  the  other  parishes  ;  "  and  "an  ai'i  for 
dividing  Saint  Stephen  s  parish,  in  the  county  of  King 
and  Queen  '  to  all  which,  I  have  :.o  objection  to  their 
b<'ing  pa-s.'ed  into  l;iw 

Jan.  16,  1723.  Rkh  Wkst. 


im 


Oir  THE  COLONIAL  CONSTITUTIONS. 


441 

(32.)    The  sum,  lawyer^,  ,j-^^,^  ^^  ^^^  ^ 

My  Lords ; 

peruj'!"!,""''  'Z  """■-  ''""'"''■>"'  »"""»"*.  1  h„ve 
perused  and  considered  tho  fnnr  r^n      • 

•ho  emitting  and  nJl,  '      ''"^''  "»"  '«^'  «>■■ 

«■'«  in  execution  an  !I^^  tt  el  v'Ttf''"'''"' ^'''- 
entitledanactforemi.tin         '™°'-^   ■>'«"»  province,    ' 

tied  an  act  fllif    ''"^^  ''■"«""'-.V  «='  to  the  act  cnti- 
'.ill»  of      dtt  ."a     ?  "'■  ?"'"«  «"^-"'  *'5.0'«i  in 

i"  other  c^er  tLr    ;■  "      """' '""'''"'"'"'  '""■<•  '-"^Iv, 

'..at  .ind:nL:r:,: '?::;;:-::':"  .">;--f 

law.  '         *>       ""^  ^  ^♦'^  P«i«'^fd    into 

".--ir;::srrt:^:'-'-- 

...- ™mm„„,ag„i„,t  f,«l>oider-.-  *  "'"  P™^'™ 

The  intent  of  this  ft(«f  I- «,.  ....        ^    „   , 

•'-«.ne,,fr,a,aor:",;;:;;d'  ;!,:ir.t;.'''f::''" 

•May  cmtract  dcl,t»   l„   „  | ,lr,.,l  .  '        '"^ 

-o,  and  ,,avcc„„.dc™i;;:',;^;r :;,,;:::!;;;; 

tiu'v  may  run  awiiv    r  n.;«i     .  •  wnn  n 

ileLre  nn/       .  '  '  ^  '*  "  ""  "•"•*^^'^'«'nHh!e  priv- 

•K'.    and  not  proper  to  I.,  p,,,,.,  i,,^,,  ,,,^^.  »  "^ 

1  have  hkewLse  perused  and  eon.sidere,l  the  three  Ibl 
Iowa.,  aet.s,^p.U,.HK.  said  i.,and.entUledC  It 


r         J 


m  if 


442 


OPtNIONS  OP  EMINENT  LAWYERS. 


for  respiting  executions  upon  certain  judgments  of  courts 

in  this    province ;''  an  act  to  rectify   proceedings  upon 

attachments;"  "an  act  for   regulatirg   and  establishing 

fees  :''  to  all  which,  I  have  no  objection  to  their  being 

passed  into  law. 

Rich.  V\''est. 
May  10,  1725. 

(33.)  The  observations  of  the  same  lawyer,  on  tlie 
peouliarities,  ami  unfitness,  ofotlier  acts  of  the  same  As- 
senMy. 

To  the  Right  Honorable   the  Lords   Commissioners   of 

Trade  and  Plantations. 
My  Lords  ; 

In  obedience  to  your  Lordships'  commands,  I  have 
perused  the  several  acts  of  the  province  of  Pennsylva- 
nia, transmitted  to  me  by  Mr.  Secretary  Popple  ;  and  as 
to  those  acts,  which  are  contjiined  in  the  bundle,  enti- 
tled "acts  pas-sed  between  the  14th  of  Octt>ber,  annoqrie 
ilomini,  1712,  and  the  27th  of  March,  annoque  doMini, 
1713,  I  have  no  objection  unto  any  of  them  l)eiiig  puNS- 
ed  into  laws,  '  only  1  must  bog  leave  to  observe  unto 
your  Lordships,  that  in  the  act  entitled  "an  act  for  es- 
tablishing orphans  court,"  there  is  a  clause,  by  which  the 
justices  of  the  orphans  court  are  empowered  to  e.\ercise 
all  the  authorities  and  jurisdictions  granted  unto  them 
by  another  law  of  the  province,  entitled  "an  act  for  the 
better  settling  intestate  e.states  ;"  and  also  in  the  act  en- 
titled "an  act  lor  mending  divers  laws  therein  mention- 
ed," there  is  a  clause,  by  which  it  is  enacte<l  that  every 
person  c(mvicted  of  felony,  in  pursuance  of  another  law 
of  the  province,  entitled  "an  act  against  rol)bing  and 
stealing,"  shall  be  committed  to  gaol 

As  the  two  clauses  in  these  two  several  acts  refer  to 


OF  THE  COLONIAL  CONSTITUTIONS. 


448 


other  laws  of  the  province  not  transmitted  to  me,  I  be- 
lieve that  your  Lordships  will  judge  it  necessary  to  give 
directions  to  your  secretary  to  examine  whether  those 
two  acts  have  been  confirmed  or  not,  since  if  upon  such 
examination,  it  should  appear  that  the  said  acte  have 
been  repealed,  I  am  of  opinion  that  your  Lordships  will 
think  it  highly  improper  to  pass  these  two  acts  into  laws 
(though  otherwise  there  be  no  objection  unto  them,) 
since  by  *he  general  words  of  the  clauses  above-mention- 
ed, your  I  ordships  may  coafiriu  two  other  acts  to 
which  the  royal  assent  has  already  been  denied. 

1  have  also  perused  the  several  act«  contained  in  the 
bundle,  entitled  "acts  passed  between  the  14th  of  Octo- 
ber annoquedomiui,  1714,  and  the  28th  of  May,  annoijue 
(Imurii,  1715,  among  which  there  is  an  act,  entitled  "an 
act  of  privileges  j  a  freeman,  '  which  act  I  take  to  be 
the  same,  or  at  least  to  the  same  purpose,  with  that  act 
which  is  mentioned  in  Sir  Robert  Raymond's  report, 
22(1  of  December,  anno,fm  dfyninn,  1713,  to  which  I 
wouhi  crave  leave  to  refer  your  Lordships  ;  and,  indeed, 
if  the  inhabitants  of  that  province  do  not,  by  the  gene- 
ral woi.is  of  this  act,  intend  to  interfere  with  the  act  of 
the  7(h  and  Sth  of  Will.  III.  entitled  -an  act  for  pre- 
venting liaud,  and  regulating  abuses,  in  the  plantation 
trade."  it  is  very  ditficult  to  imagine  what  other  inten- 
tion they  can  possibly  have,  since,  by  the  law  already 
in  l»eing,  thefn'emen  are  entitle<l  to  all  the  privilegJs 
iiicutidiu'd  (heroin,  so  far  as  is  c«)nsistent  with  theabove- 
iiH  iitiuncl  act  of  King  William,  or  any  other  laws  of 
this  kiiigdiim. 

Tiiv'n>  is  also  unotlier  act,  entitled  'an  act  for  the 
''iisf  oi'.such  as  con.-icientionsly  .Mcrupie  to  take  the  .soK-mn 
nllirmation  f«.rnu'rly  allowed  in  (.Jreat  Britain."    As  no 


i 


444 


OPINIONS    OF    EMINENT    LAWYERS. 


man  is  a  greater  friend  to  liberty  of  conscience  than 
myself,  as  to  my  own  particular,  I  have  no  objection  to 
this  act  being  passed  into  a  law  ;  yet  I  think  it  my  du- 
ty to  observe  to  your  Lordsiiips,  that,  as  the  affirmation 
to  be  allowed  by  this  act  is  materially  diflferent  from 
that  practised  in  Great  Britain,  (the  name  of  Almighty 
God  being  not  mentioned  therein,)  your  Lordships  may 
possibly  think  it  proper  particularly  to  conBider  how  far 
the  circumstances  of  this  province  may  render  it  neces- 
sary to  extend  the  toleration  to  Quakers,  further  than 
by  the  laws  of  Great  Britain  has  yet  been  done. 

There  is  also  another  act,  entitled  "an  ac't  for  laying 
a  duty  on  wine,  rum,  brandy ,  and  spirits,  cider,  and 
hops,  imported  into  this  province ;"  and  there  is  also 
another  act,  entitled  "an  act  for  laying  a  duty  upon  ne- 
groes imported  into  this  province  :"  I  submit  it  to  jour 
Lordships'  consideration,  how  far  it  m!»y  be  proper  for 
the  inhaLitants  of  Penasylvania  to  lay  duties  upon  the 
above-mentioned  commodities  :  t(j  which  consideration 
may  be  added,  that  in  the  act  relatmg  to  negroes,  there 
is  a  power  given  to  the  officer.-^  to  break  open  hou^^es,  up- 
on suspicion  of  negroes  being  there,  generally,  without 
any  limitation  or  restriction  for  the  exercise  of  it,  which 
power  extends  to  nights  a  A^ell  as  days,  a  power  which 
is  rarely  admitted  by  the  laws  of  Great  Britain  in  offen- 
ces of  an  inferior  nature. 

As  to  the  other  acts  contiiined  in  the  above-mentioned 
bundles,  I  have  no  objection  to  them. 

Rich.  West. 
March  6,  1718-lS. 


»— 


OF  THE  COLONfAL   CONSTITUTIONS. 


445 


(34.)  2  he  olmrvathm nf  the SoUcitoi'-G., aval,  T ham- 
son,  on  a/i   act  of  fh^   New  Jersey  Assembly,  fur  ascer- 
taining th^  seat  of  government. 
Sir. 

In  obedience  to  the  commands  of  the  Lord.s  Commis- 
.sioners  for  Trade  and  Plantations,  .signified  ).y  yours  of 
the  5th  instant,  I  have  considered  the   act    to   repeal  a 
former  actof  general  assembly  of  this  province,  entitled 
"an  act  for   the  ascertaining  the  place  of  the  sitting  of 
the  representatives  to  meet  in  general  assembly."     And 
as  the  act  to  be  repealed  was  made  so  latelv  as  the  eighth 
} ear  of  Queen  Anne  and  is    found    to  be"  inconvenient 
and  a.sserted  to  be  contrary  to  (lie  royal  instructions,    I 
do  not  apprehend  that  there  can    be  any   scruple,  why 
His  Majesty  should  not  approve  of  this    act  sent  over, 
which  leaves  the  place  of  the  meeting  of  the  assembly 
to  be  appointed  as  shall  be  found  most  convenient  ;  and 
the  rather,  for  that  the  act   to  be    repealed    was    1    re- 
straint of  the  King's  prerogative. 

T^  I       r.    1-,..  WiM,.  Tho.mson. 

December  9,   1717. 

(35.)  ^f,■  Wesfs  r(  marl's  on  an  art  of  the  Honr:  As- 
semhly,  ten,  ling  to  lessen  the  jurisdiction'  nf  the  .supreme 
courts  of  justice. 

T.J  the  Right  Hon.,  the   Lords  Commissioners   of  Trade 

and  Plantations. 
My  Lords; 

In  obedience  to  your  Lordships'  coi.nuands,  .signified 
to  me  by  Mr.  Secretary  Popph',  I  have  ,)eru,se.l  and 
considered  of  three  acts,  passed  in  thr  province  of  New 
Jersey,  in  AiiuMirn.  entitled, is  li.llows,  vi/,  :  'an  not  for 
shortening  of  law-suits,  and  regulating  tlie  practi.'e  of 
the  law  ;"  'um  net,  enforcing  the  observation  of  the  or- 


1 

1 

'■-.■* 

1 

J 

t 

ii 

M 

1 

..--■t 

,'f 

f  ' 


446 


OPINIONS  OF  EMINENT  LAWYERS. 


If 


•a  w 


dinance  for  establishing  fees  within  this  province  ;"  "an 
act  for  acknowledging  and  recording  of  deeds  and  con- 
veyances of  land  within  each  respective  county  of  this 
province." 

As  to  the  general  purview  of  which  acts   I   have   no 
objection  ;  but  inasmuch  as    those  acts  are  represented 
by  the  Governor  and  by  the  judges  of  the  supreme  courts 
of  justice  in  chat  province,  to  be  entirely  destructive  of 
their  jurisdiction,  and,  as  in  their  opinion,  not  tit  to  be 
pa.ssed  into  law.  especially  considering  that  they  are  in- 
tended to  be  perpetual,  and  have  also  been  represented 
unto  me  that  those  acts  are  very  prejudicial  to  the  right 
of  those  officers  who  are  appointed  by  patents  from  the 
Crown,  by  les.sening  their  usual  and  accustomed  fees  in 
such  a  manner  as  that  there  is  not  a  sufficient  encuurage- 
ment  for  any  person  to  undertake  the  execution  of  those 
offices;  I  am  therefore  of  opinion,    that   those  acts   are 
not  proper  to  be  passed,  unless  there  be  clauses  inserted 
into  them  to  save  the  jurisdiction  of  the  superior  courts, 
and  the  rights  of  those  few  officers  in  the  province,  who 
are  appointed  by  patent  from  the  Crown. 

Rich    West. 
December  11, 1718. 

(36.)  Therrpurt  of  Ihe  Atiornei/ and  SoUcit(/r-Geiie- 
ral,  Ry<tr  and  Mtirray,  on  some  singular  acts  of  the 
Neiv  Jeney  Asaemhly. 

To  the    Right  Honorable,  the  Lords   Commissioners  of 

Trade  'ind  Plantations. 

May  it  please  your  Lordships; 

In  pursuance  of  your  Lordships'  directions,  signified 
tons  l)y  Mr.  Hill,  in  his  letter  of  Iho  17th  «if  .Inly  1749, 
with  the  live  lu'reinafter-nientioned  acts  i)asse(l  in  the 
province  of  New  Jersey  in  February,    1747-8,  desiring 


.1     ■■  k'\ 


OP  THE  COLONIAL  CONSTITUTIONS. 


447 


our  opinion  the'-eupon  as  soon  as  we  conveniently  can, 
viz  :  "an  act  for  naturalizing  Peter  Landerbouch,  Cath- 
erine, Elizabeth,  and  Barbara,  his  three  daughters  ;"  "an 
act  for  punishing  the  coiners  and  counterfeiters  of  for- 
eign coin  passing  current,  and  the  counterfeiters  of  bills 
of  credit  of  this  province ;"  "an  act  for  avoiding  actions 
of  slander,  and  fox  siay  of  proceeding,  until  the  first 
day  of  October,  1748,  in  other  civil  actions  against  the 
late  rioters ;"  "an  act  for  the  suppressing  and  prevent- 
ing of  riots,  tumults,  and  oth'3r  disorders  within  this  colo- 
ny ;"  "an  act  u-  pardon  the  persons  guilty  of  the  insur- 
f fc.  ticns,  riot.-.,  and  disorders,  raised  and  committed  in 
this  province.'' 

Mr.  Hill  is  further  directed  hy  your  Lordships  to  ac- 
quaint  us,  that  the  first  cf  the*i  acts  appears  to  be  of  an 
unusual  nature,  and  thai  you  do  j.ot  find  that  acts  of 
this  sort  have,  at  any  time,  been  pt'^ssed  in  his  Majesty's 
colonies  in  America  ;  that  the  four  last  mentioned  acta 
were  passed  on  occasion  of  great  riots  and  disorders  hav- 
ing been  committed  in  that  province,  and  which  now 
are  arisen  to  such  a  height  as  to  claim  the  serious  atten- 
.  tion  of  his  Majesty's  m"  .isters,  who  have  had  one  meet- 
ing thereupon,  and  are  to  meet  again  in  a  few  days  : 
your  Lordships,  therefore,  desire  that  you  may  be  favor- 
ed with  our  opinion  with  all  possible  dispatch,  the  prov- 
ince being  in  the  utmost  confusion. 

As  to  the  act  for  pmiishiog  coiners,  &c.  we  do  not  see 
any  objection  to  that  part  which  concern.^  the  coiners  of 
ii'icigri  coin  made  current  by  lawful  authority;  but  the 
extending  the  penalty  to  coiners  of  foreign  coin,  that  is, 
or  shall  be,  by  connnon  consent,  usually  passed,  and  ta- 
ken or  received  as  full  satisfaction  for  debts,  appears  to 
us  very  improper,  both  on  account  of  the  great  uucer- 


■U, 


448 


OPINIONS  OF  EMINENT  LAWYERS. 


tainty  of  the  description  on  which  the  capital  punish- 
ment is  to  depend,  and  the  too  great  credit  that  is  given 
to  Avhat  is  called  conuaon  consent,  not  founded  on  the 
act  of  his  Majesitj,  or  of  the  general  assenibh\ 

As  for  the  act  for  naturalization  of  Landerbouch,  &c. 
since  your  Lordships  have  been  pleased  to  acquaint  us, 
by  Mr.  Hills  letter,  that  you  do  not  find  any  acts  of  this 
sort  have,  at  any  time,  been  passed  in  his  Majesty's  col- 
onies in  America,  and  there  appears  nothing  special  in 
this  case  :  we  cannot  think  it  advisable  to  begin  the  pre- 
cedent now,  and  in  this  colony. 

As  to  the  act  of  pardon  to  the  persons  guilty  of  the 
late  insurvectious,  which  by  the  act  itself  appears  to 
have  been  thought  to  amount  to  high  treason  in  some  of 
the  parties,  it  is  a  mattor  that  must  rest  entirelv  in  his 
Majesty's  royal  breast,  weighing  all  tho  circumstances 
and  consequences  that  may  be  foreseen  or  appre- 
hended. 

But  it  ajjpears  to  us  very  extraordinary,  that  in  a 
matter  of  so  great  moment,  in  which  the  peace  of  the 
whole  province  has  been  disturbed,  and  the  conduct  of 
the  rioters  seems  to  have  been  no  less  than  a  rebellion,  . 
and  the  only  alleviation,  so  much  as  insinuated  as  toanv 
of  the  criuiinals,  is  their  being  artfully  misled,  a  pardon 
of  all  should  be  granted,  without  excepting  even  those 
who  misled  the  rest,  or  leaving  any  one  to  the  justice 
of  the  law,  l)esides  those  who  have  been  actuallv  indic- 
ted for  treason,  and  their  trial  suspended. 

As  to  the  act  lor  avoiding  actions  of  slander,  and  lor 
stay  of  proceedings  in  other  civil  actions,  we  do  not 
know  enough  of  the  grounds  of  those  actions  of  slander 
to  form  any  judgment  upon  that  part  of  it,  much  le.ss  to 
see  how  that  is  so  connected  with  the  late  'nsurrectious, 


OF   THE  COLONIAL  CONSTITDTIONS.  449 

as  to  make  those  any  reason,  for  such  a  suspension, 
^ith  regard  to  the  other  part  of  the  act  relating  to 
the  stivy  of  other  civil  actions  against  the  late  rioters 
we  do  not  see  upon  wh«t  reason  it  can  be  founded  that 
h.s  xMajesty's  subjects,  who  have  been  s,)  grossly  injured 
in  their  property,  should  be  delayed  in  the  recovery  of 
that  satisfaction  which  the  law  gives  them. 

As  to  the  act  for  suppressing  riots,  uc.  it  appears  to  us 
to  have  a  tendency  not  to  suppress,  but  encourage  riots 
as  It  inflicts  a  much  less  punishment  than  what  the  law 
at  present  does,  the  penalty  of  ten  pounds,  and  their 
own  security  in  one  hundred  pounds  for  good  behavior 
for  three  years,  being  by  no  means  adeo.uate  to  the 
crime. 

D.  Ryder. 

^^^y  21'  1 '  ^^  Wm.  Murray. 

(37.)  J/r.    We^-f.»  ojnniononthe  reaenue  acts  of  Ja- 
maica, upon  special  qimtiom put  on.  them. 

In  November,  1716,  three  acts  were  passed,  viz  :  -an 
act  to  oblige  several  inhabitants  of  this  island  to  provide 
themselves   with   a   sufficient  number  of  white  people, 
and  to  maintain  such  as  shall  cone  over  ;"  an  act,  en- 
tuled  "an  act  to  encourage    the  bringing  over   and' set- 
tling of  white  people  in  this  island;"  and  an  act,  entitled 
"an  act   t.)   impose  duties  upon  several  commodities,  to 
defray  tlie  extraordinary  charges  of  the   government, 
and  applying  the  same    to   several    uses,"  wherein    are' 
the  clauses  annexed,  marked  Nos.  A.  B.   and  C;  and  in 
August,  1717,  an  act  entitled  "an  act  for  continuing  an 
act  to  impose  duties  on  several  commodities,  to   defray 
the  extraordinary  cliarges  of  the  government,  and  ap- 
plying  the  same  to  several    uses,^'  wherein    is   also  the 
clause    annexed,  marked  D. 
58 


450 


OPINIONS  OF  EMINENT  LAWYEKS. 


In  pursuance  of  the  'iforesaid  acts,  the  commissioners 
severally  entered  into  the  bonds  annexed,  marked  F.  C. 
G.  for  duly  complying  with  the  said  act. 

The  four  acts  above-mentioned,  being  transmitted  to 
Great  Britain,  were,  upon  their  l)eiiig  taken  into  consid- 
eration, severally  rejected  by  his  Majesty. 

n  Ai  g  ist,  17  18,  an  as.^embly  was  called,  and  after  ten 
weeks  sitting,  were  prorogued  to  the  lOth  of  November, 
without  answering  the  ends  of  their  being  called,  or  ap- 
propriating any  of  the  sums  in  the  conmiissioners'  hands, 
wiiich,  upon  auditing  the  accounts,  appeared  to  be  up- 
wards of  £18,000. 

On  the  10th  of  No^•ember  the  assembly  met  again, 
according  to  the  prorogation  aforesaid,  and  sat  some 
days;  but  the  Governor  finding,  by  the  temper  they 
were  in,  that  the  pul)li(!  was  not  to  be  served,  proro- 
gued them  to  the  tenth  of  March,  and  has  since  dissolv- 
ed them. 

Though  it  appeared  to  the  assembly  that  the  treasury 
would  want,  by  the  2oth  of  March,  by  the  receiver-gen- 
eral's computation,  upwards  of  £1)000  to  answer  the  de- 
mand upon  the  public,  yet  they  I'csolved  to  put  only 
£5800,  part  of  the  aforesaid  £18,000,  in  the  several 
commissioners'  hands. 

This  being  the  condition  ol  i  he  "ov  eminent,  and  it 
being  likewise  uncertain  if  .another  assembly  be  called, 
whether  the  majority  may  consist  of  such  persons  as 
will  be  for  sup]K)rting  the  government,  or  supplying  the 
treasury,  and  framing  the  laws  they  make  agreeable  to 
the  Kii,  ,s  instructions,  or  in  such  manner  as  they  can 
be  con.sented  to  by  the  council,  as  well  as  the  Governor, 
without  disregarding  his  Majesty's  instructions,  and 
rendering  themselves  entirely  useless  and  insignificant : 


w   f  •? 

^■-   t        I 


OK  THK  COLONIAL  CONSTITUTIONS. 


451 


It  is  proposed,  that  in  order  to  provide  for  thy  support 
of  the  government,  and  the  peace  and  quiet  thf  roof,  that 
the  several  commissioners  be  required  U)  pay  the  money 
in  their  hands  to  his  Majesty's  receiver-general. 

But  though  it  seems  highly  just  and  reasonable  that 
lit  all  times  the  government  should  be  in    a   capacity  to 
l)ay  its  debts,  and  put  into  such  a   condition   as  that  it 
may  not  wan^  either  credit  or  money  to  enter  upon,  and 
go  into  any  proposition  fbr  the  security-  of  the  trade  and 
interest  of  government ;  and  notwithstandin,^  it  is  noto- 
rious the  money  in  the  hands   of  the   com-nissioners  is 
greatly  wanted,  as  well  to  pi:y  the  debts  of  the  public, 
as  put  in  execution  some  service  for  the  p     lie  good   of 
the  government,  and  that  it  is.  on  many  aoc(mnts,  appa- 
rently for  the  beuelit  aud  advaiitage  of  the  inhabitants, 
that  the  money  rai.sed  upon  them  should  not  lie  useless 
lu  the  hands  of  the  commissioners,  as  has  been  practised 
of  late  years,  or  in  the  manner  it  does,  and  has  done  for 
a  considerable  time,  w)«ilst  many  poor  people  want  their 
money  due  from  the  public,  or  the  government  has  just 
demands   upon   it.    but     that    it   should    be    forthwith 
ordered    by    the    Gove  rnor  and     cjuncil    to  be    paid 
into  the  treasury  there,  to  be  issued  thence  for  the  pub- 
lic service  generally,  by  their  order  ;  yet  lest  it  may  be 
saidit  is  against  law  to  order    the  money   as  aforesaid, 
and  the  commissioners  should  refuse    to    pay    the    said 
money  by  such  an  authority,  it    is  tlunK^ht  a  ;    i.sable  to 
ask  the  following  fjiurric-'^  ; 

Qun-e  1st.  Whether  the  i)onds  are  of  force  after  the 
repeal  of  the  said  acts  > 

2d.  If  the  bonds  and  cunditions  are  in  force,  notwith- 
standing the  rejecting  the  acts,  whether  they  are  satis- 
fied  by  the  commissioners  having  accounted  to  the  as- 
sembly 1 


452 


OPINIONS  OK  EMINEM    LAWYEKS. 


yd.  What  .shall  become  of  the  money,  raised  by  the 
aets,  in  tlie  commissioners'  hands,  the  appropriation 
and  uses  being  Jeterniined  ]>y  the  rejecting  tlie  acta  ; 
and  h«)w  may  the  commissioners  dispf)se  of  the  money, 
and  be  discharged  of  their  bonds,  if  in  force  7 

4th.  \\'hether  the  (Governor  may  not  direct  the  com- 
missioners to  pay  the  several  sums  or  l)alances  into  the 
treasury,  generally,  for  the  use  of  the  government,  free 
from  the  appropriation  of  tht'  acts  or  penalty  of  the 
bonds,  and  thereupon  order  the  IjoimIs  to  be  vacated  ] 

oth  Whftt  method  must  l)e  tjiken  to  oblige  the  com- 
missioners (upon  refu.sal)  to  pay  and  account  for  the 
money  as  afoiesaid  ;  or  what  otherwise  may  be  d(me  for 
the  service  and  support  of  the  government  under  these 
circumstances  7 
My  Lords  ; 

QH(fTe{i.)  In  obedicMice  t<)  your  Lordships"  commands 
T  have  considered  the  alxjve-written  ifiim-i/^*/]  and,  in 
answer  to  the  first  of  them,  I  am  of  opinicm  that  the 
bonds  are  n  >t  in  themselves  void,  inasmuch  as  7io/}  cH 
fartuvi,  which  is  tlu'  g«  iieral  is.sne  in  all  actions  u[)ou 
bonds,  (iintiot  be  pleaded  by  tho  obliger  ;  liut  thev  arc 
voidable  as  to  such  part  of  the  rondilion  of  them,  bv 
which  they  are  obliged  to  appl\  tlir  monies  King  in 
tb<  ir  hands,  to  u.ses  dire<'ted  by  an  act  of  a.'^.seiublv  lliat 
is  not  III  force,  and,  fberel'ore,  the  inonev  cannot  be  ■iii- 
]>lied  accordingly 

('J.)  .\s  to  tile  .second,  I  (liink  that  the  conditions  an- 
satisfied  by  the  connnissjoners  i.coiuiting  to  the  as- 
sembly. 

(3.)  A.s  (o  the  tbini,  1  .-in,  .>r  ..pinion,  lli.it  the  nionev, 
nesting  in  the  comniis>i  neis  Iiands,  is  lo  iu-  i-onsidercd 
n«p\iblio  money,  and  (like    the  surplus,  ntuipproprnitect. 


OF  THB  COLONIAL  CONSTITUTIONS. 


458 


of  a  f.incl  in  England)  is  subject  to  the  furture  disposi- 
tion of  the  general  assemblj-, 

(1  )  As  Ui  the  fourth,  I  am  likewise  of  opinion,  that 
since  the  act  by  which  the  commissioners  were  appoint- 
ed is  repealed,  that  the  Governor  may  dil-ect  the  com- 
missioners to  pay  all  such  sums  of  money  as  thev  might 
have  received  hy  virtue  of  the  said  act^^jefore'it  was 
known  that  the  royal  assent  was  refused,  into  the  pub- 
lic treasury  ;  but  here  1  would  beg  leave  to  observe  to 
your  Loi-dships,  that  if  the  act  herewith  returned  io 
your  Lordsliips'  board,  entitled  "an  act  to  oblige  the  sev- 
eral  inhabitants  of  this  island,  &c."  be  confirmed,  then 
this  power  of  the  Goverhor  would  be  eluded  ;  since, 
though  the  monies  would  be  in  the  hands  of  the  re- 
ceiver-f^eneral,  yet  it  would  be  in  his  capacity  of  com- 
missioner, and  not  as  receiver.  But  if  it  in  not  confirm- 
ed, the  Governor  may  order  the  bonds  to  l»e  cancelled, 
since  the  obligers  have  done  all  that  they  possibly 
could  towards  towards  the  peformance  of  the  condition 
of  them. 

(o.)  As  U)  the  lastyw^m  I  am  of  (^pinion,  that  the 
(•(mm  ihsitmers  U'ing  apjwintetl  by  act**  which  are  now 
to  l>e  (HMisidered  iis  none,  and  it  being  certuin  that  this 
is  public  money,  which,  by  law,  is  to  be  lod«red  in  the 
public  treasury,  and  not  \n  private  hands,  therefort  tlic 
commissioners  »re  in  the  case  of  any  conunoi,  persons 
into  whose  bands  public  monies  may  chance  to  come 
without  any  particular  right  t<.  receive  the  same,  ami 
iii.iy  l)c  proswuted  and  sued  in  the  common  method  of 
their  cxche(|ucr,  v'.-c.  for  the  ivcovt-ry  of  the  m(mev  in 
their  bands. 

Ki(  H   Wkst. 

.luiv  H.  17  hr 


454 


OPINIONS  OF  EMINENT  LAWYERS, 


It 


(38.)  The  report  of  t/ir  same   lawyer  on  the  Jamaica 
act  of  A-s.'^emhiy,  for  rolonizinij  the  inland 
To  the  Ili<rlit  Hon.  the  Loixls  Coniniis.«ioners  for  Trade 
iind  Plantfl,ti(ni.«. 

My  Lords  ; 
In  obedience  to   your  Lord.ships  command.'^,    I    have 
perused  and  considered  an  act  ofj^eneral  assembly,  pass- 
ed in  the  island  of  Jamaica,   entitled   "an  act  to  oblige 
the  several  inhabitants  of  this  island   to    provide    them- 
Helves  with  a  sufficient  number  of  whi^e  people,  or  pay 
certain  sums  of  money  ii>  case  they  should  be  deficient, 
and  applyinjr  the  same  to  .several  uses.'"     As  to  the  gen- 
eral  purview  of  which  act,  I  have  no  objection  to  its  be- 
iu^'pas.sed  into  law  ;  but  1   must  oe^r  leave  to  observe  to 
your  liordships,  that  by  a  clau.se    ccmtaijied  therein,  it  is 
enacted  -'That  all  ves.sds  trading  in  or  about  the  island, 
which  shall  have  blacks  on  boartl  above    the    number  of 
(me-fourth  part  of  the  hands  employed  in  the  manage- 
ment <.f  such  vessels,  shall  be  forfeited,  with  all  its  tack- 
le.       I  sulMuit  it  to  vour  Lordships  to  determine  wheth- 
er thes(>  words  are  not  too  general,  and    whether  thev 
should  ii.it  have    bct-n  restrained  to    such  ves.sels  as  are 
actually  oAMcd  by  ilu'  inhabitants    of  the    islan.i  .>       I 
have  bcrn  but   very  little  (-(.uvor.srtnt  in  matters  of  trade, 
but  I  have  Ik-cm  informed  that    in  tlu'    Ka.>t  India  trade! 
the    cornmanders    of  ships,    bv    rea.s<.n    ..f   a    n.ortalitv 
auK.ni:  tli,.,r  .siilors,  are  fmpi.-ntly  oblig,.,|   .„  ,„„n  their 
ships  with  Indians,  bh„ks,  or  such  other  uumi    as   they 
can  get,    tu  assist  them    in    their   v.yage   homeward- 
Wbetle-r  >u(li  accidents  may   not    «l,s,,    happen    in    the 
West  India  tr.ule.  espniully  .  nln-ard  such  ships  as  trade 
frrw  the  c,>a.st  of  (Juinea,  and   trans(H)rl  blacks  into  that 
island,  as  may  necessitate  them  to   employ  more  blm-ks 


Oh   THE  COLONIAL  CONSTITUTIONS. 

than  a  fourth  part  of  the  number  of  their  crow,  I  cannot 
say;  however,  m  your  Lordships  are  the  proper  judges 
whetlier  the  inhahit^mts  ol  tliat  island  are  of  a  disposi- 
tion to  take  any  advantage  of  this  nature,  i  thought  it 
proper  to  observe  this  paiticuhir,  which,  if  not  pertinent, 
I  hope  will  be  excused,  that  your  Lordships  may  con- 
sider how  far  this  clause  may  be  proper  to  be  i)assed. 

There  is  also  a  clause  In  this  act,  by  which  the  es- 
tates of  all  persons,  not  resident  in  the  ishiiM,  are  higher 
taxed  than  those  of  persons  who  dwell  upon  the  spot. 
I  submit  it  to  your  Lordships  how  lar  this  may  be 
prejudicial  to  persons  residing  in  Great  Britain,  and  in- 
consistent with  that  e.piality  which  ought,  to  be' observ- 
ed in  the  levying  of  public  taxes. 

I  beg  leave  further  to  observe  to  your  Lordships,  that 
the  general  assembly,  retlecting   upon    the    reasons   for 
which  their  other    act.-  were  repealed,    have,  i.ideed,  so 
far  complied  with  his  .Majesty's  instructions  as  to  make 
the  monies  to  be  collected  by  virtue  of  this  act,  payable 
nito  the  h.aids  of  tin-  person  who  is  to  '>e  receiver-gene- 
ral of  the  island  ;  but  then    with  a    view,  doubtless,    to 
continue    their  claim  of  nominating  conunissioners  for 
t)ie  receipt    of  public   .aoney,   ttiey    do    not    make    the 
money  payable  to  him  in  tiie  capacity  of  receiver-gene- 
ral.  I.iit  as  your  Lordship.s  will  observe,  they  appoint  the 
person  who  is    employed  by  the  King  as  "his   receiver- 
general,  to  l)e  their  ctmimissionei .  for  the  receipt  of  this 
money:  and  coij,sc(juM.,lly,  n,,t  co,i(e„t   with  that   obli- 
gati..n  which  every  receiver-general  is,  ,.,■  nffi  io,  under, 
faitlifi.lly  to  account  for    the   public  money,  they    enact 
"that  he  shall  givo  an  additional  security  for  his  lidelity, 
by  ehteiiii;;  info  bond,  a,„i  tiikinga    fresl    .at b  for    the 
laithfnl     discharge    ol    a    distinct    ollice,     which    they 


if" 

k  ' 


(rH, 


*  IN 


I 


466 


OPINIONS  OK  EMINKNT  LAWYERS. 


judge  proper  to  bestow  upon   him." 

Your  Lordships  will  permit  mo  further  to  observe, 
that  the  assembly,  anticipating  any  resolutions  which' 
may  be  thought  proper  to  be  taken  upon  those  quarie-s, 
which  your  Lordships  have  been  pleased  to  send  to  mj 
concerning  the  monies  coJlect-d  by  virtue  oi'the  repeal- 
ed acts,  have  inserted  into  this  act  a  clause  to  direct 
theimyments  oftlie  monies  remaing  in  the  hands  of  tlie 
former  commissioners,  unto  the  present  conuiilssionor, 
the  receiver-general,  who  is  i,,  aceotmt  for  that  money 
in  the  same  manner  as  he  is  for  what  he  shall  receive  in 
consequence  of  this  act. 

I  have  also  perused  an  act  for  the  encouragement  of 
voluntary  parties,  to  suppress  rebellious  and  run-away 
negroas,  and  observing  only  that  the  parish  of  Westmor- 
land is  excepted,  I  know  not  for  what  reason,  from  any 
benefits  to  be  derived  from  thnt  act,  I  have  no  objection 
to  this  being  passed  into  a  law. 

July  8,  i7l9. 

( 39. )  y  he  apiu ion  of  (he  A  ttorney  and  SolU^Uor-Ceu- 
eml,  Murray  and  Lhijd ,  on  four  oHh  of  the  Jamnua 
A.^Mend,I,f,  u'hirit,  after  hrariny  jHirtie^'  they  d,.m(d  of 
^uch  a  Mjtun,  m  the  Governor  i,nght  not,  accordUoj  'to 
h*>*  histructiotu*,  to  have paaiK-if. 

To  the    Right  Ih.m.rable  the  Lords  ConunissionerH   of 

Trade  and  Plantations. 

.May  it  please  yom-  Lordships; 
In  pursuance  of  your  Lordships'  commands,  signiiied 
to  us  by  .Mr.  Pownall,  in  his  lett«'r  of  the  :5(lth  of  Octo- 
ber lust,  transmitting  to  us  four  acts  lately  pas.-cd  in  flic 
island  Jaiuaica;  togcfhcr  with  an  acMre'ss  of  the  coun- 
cil and  assembly  to    his  Majesty  thereupon,  ivfent'd  to 


OK    THE    COLO.NIAL    CONSTITUTIONS. 


467 


your  Lordships  by  order  of  the  Lords  of  the  committee 
of  council  for  plantation   affairs,  the  10th  of  September 
last  ;  and  likewise  extracts  of  all  such  parts  of  his  Maj- 
esty's commission  and    instructions   to  his  Governor  of 
Jamaica,  as  relate  to   passing  of  laws,  all  which  papers 
are  herewith  reti-rnea  :  and  as   those  acts  appeared  to 
your  Lordships  to  be  of  frvt^t   importance,   and  might 
greaily  affect  the  welfare  and  interest  of  that  island,  and 
tl>e    rights    and    properties  of     his   Majesty's    subjects 
residing   there,    desiring   our   opinion    upon    them,    in 
point  of  law,  as  soon  as  might  be,  tht>  titles  of  which'acts 
areas  follows,  viz  :  'an  act  for   removing   the  several 
laws,  records,  books,  papers,  and   writings,  belonging  to 
the  several  offices  of  secretary  of  this  island,  clerk  of  the 
siipri  nie  court  of  judicature,  clerk  of  the  crovoi.  clerk  of 
the  parents  and  register  in  chancery,    and  provost-mar- 
shal, from  the  town  of  St.  Jago  de  la  Vega,  to  the  town 
of  Kingston  ;  and  to  oblige  the  several  officers  to  liold 
and  keep  (heir  respective  offices,  with  the  respective  rcc- 
-rds  and  papers,  in  the  said  town  ofKing^i.m  ;  and  also 
Inr  holding  tho  supreme  court  of  judicature   in  the  said 
town  of  Kingston  for  the  futinv  f  "an  act  to   appoint 
<'omini..sioners  to  erect  and  build  a  house  and  offir-es    in 
tin-  town  of  Kingston,  for  the  residence  of  the  Governor 
"t'lliis  island,  and  to  empower  the  justices  and  vestrv  U> 
assess  and  levy  a  iav  upon  the  proprietoi  s  of  hou.^^es  and 
lands,  iuliabitaiits  and    traders  in  the  said   town  ;•'  "an 
.•Id,  appointing  (ommissioners  to  iurpiire  into,  and  Mr.tQ 
what  losM.s  -,me    ..f  the    fieehohlors  of  messuages  and 

'''"•' "''^  '"  '•'<•  tow.M.rSf.   Jago  de  la   Vegn,   ami  the 

l.-see.  ofsurh  rreehohl.M-.,  may  nu^taiu  in  the  value  of 
llieirsii.l  nveholds,,,-  l.M.ed  premisev,  bv  the  removal 
ol'lli.'  siipivmeeomt  ..I    judicnti.Te,    and  "of   the  public 


4W 


458 


OPINIONS    OF    EMINENT     LAWYERS. 


records,  from  the  said  town  to  the  town  of  Kingston  ;'. 
"tin  act  to  enlarge  the  jurisdiction  of  the  several  inferior 
courts  of  common  pleas  :'  we  have  taken  the  said  four 
acts  into  consideration,  and  have  l>een  attended  bv  coun- 
sel for  inhabitants,  who  desired  to  be  heard  in  opposition 
to  the  said  acts  ;  and  also  by  Mr.  Sharpo,  as  agent  for 
the  said  I.^Jond,  and  counsel  in  suj^jwrt  thereof,  and  we 
are  of  opinion  that  they  are  of  such  a  nature,  as  the 
Governor,  by  his  instructions,  ought  not  to  have  assented 
*o,  in  the  manner  in  which  they  are  passed. 

W.     MURRAV. 

Dec.2T,  17o.>.  R,chd.  Lloyd 

(4(1  )  Y'Ac  opinion  of  the  Attorney  and  SoUcHor-treH- 
ercd.  Httiky  and  Yarke,  that  circuit  courts  in  Jamaica 
conhl  not  he  eMahlished,  in  the  propomi  niode,  hut  hy  the 
legidature  of  the  i«/(/nd,  or  hi/  an  act  of  parliarw  nt. 

Case. — By  laws  heretofore  pas.'^ed  in  the  island  t)f  ,Ta- 
niiiica,  and  (•onHrmed  hy  the  Crown  (a  reference  to 
which  laws  is  iiereunto  unuoxed),  the  nuisters  ol'  ail 
ships  and  vessels  are  obliged,  before  they  can  tiv.de  or 
land  any  goods,  to  wait  upon  the  Governor,  and  give  .<e- 
<'urity  in  the  secretary  s  olhce  at  St,  .bigo  de  la  Vega. 
not  to  carry  any  person  ofi'tlie  island  without  the  (iov- 
eniors  ticket,  nor  (U'purt  themselves  v.ithout  tiif  Gov- 
ernors leave;  ;•  1  the  leeeiver-general  and  naval  othcer 
MIC  obliged  to  Moid  and   keep   tli'  ir  ofti<'<'<  i.t  l-'ingston. 

It  is  represented  hy  the  inerchanis,  r.nd  utheis.  tra- 
ding to  and  resiiliiig  in  the  island  of  .Iain!ii(  a.  tliat  flie 
tiade  and  c-oimiier<'"  of  ttiat  i-land  is  gi'eati\  oli-ti  uoted. 
itiid  Mierchanls  and  masters  ot"  ^hips  exposed  to  great 
risk  and  expense,  iroin  i-emg  oilitred,  by  the  above-men- 
tioned   laws,  to  wait  upon  the  G    •.  ernor  at   St.  Jago  de 


OP  THE  COLONIAL  CONsTlTmONS. 


159 


lu  Yoga,  before  thoy  can  unload  their  ships,  and  from 
masters  of  v<>^sels  takinj,^  in  cargoes  at  the  out-ports,  be- 
ing obliged  to  come  to  Kingston  to  cleav  out  with  the 
proper  officers. 

It  is  apprehended  that  the  opening  ports  of  entry  and 
clearance  of  t.hips  in  different  parts  of  the  island,  and  di- 
recting the  receiver-general,  secretory,  naval  officef,  and 
collector  of  the  customs,  to  keep  offices  therein,  will 
reniedy  these  inconveniences  and  grievances  com^ 
plained  of. 

(^U(en:~Whnt  will  be  tho  legal  and  proper  method 
of  carrying  such  measure  into  execution,  consistent  with 
the  above-mentioned  laws  of  the  island,  and  the  acts  of 
parliament  passed  for  regulating  the  plantation  trade, 
particularly  those  of  the  ir)th  and  2r)th  of  Charles  II. 
chap.  7,  and  7th  and  8th  of  William  III.  chap.  22  7 

Upon  the  consideration  of  the  several  Itiws  above-men- 
tioned and  referred  to,  we  are  nf  opinion,  that  his  Maj- 
esty may  open  ports  of  entry  and  clearance  of  ships,  in 
such  dilTcrent  parts  of  thc.>  island  as  he  thinks  proper, 
and  may  direct  the  proper  officers  to  attend  for  the  busi- 
n(>ss  of  such  ports,  and  to  take  security  there,  which, 
we  conceive,  will  remove  the  incmveniences  and  griev- 
ances com[)lained  of 

Caw.—Uy  laws  heretofore  passed  in  the  island  of  .Ta- 
niaica.  and  confirmed  by  the  Crown  (a  reference  to 
which  laws  is  hereun.o  annexed.)  the  suprei;.,  court  of 
.jii.licature.  and  most  of  the  offices  of  record,  are  direct- 
••|1  t"  I'c  hi'M  and  kept  at  the  town  of  St.  Jago  de  la 
\  (>ga. 

It  is  represented  by  the  m-rchants,  aisd  otliers,  trad- 
ing to  and  residing  in  the  island  of  Jamaica,  tl'.at  thr 
trade  ami  commerce  of  that  island  is  greatly  obstructed. 


4b0 


OPINIONS  OF  EMINEi^T  LAWYERS. 


il 


If- 


and  merchants  and  masters  of  ships  exposed  to  great 
risk  and  expense,  from  being  obliged,  by  the  above- 
mentioned  laws,  to  attend  the  supreme  court  there, 
either  as  prosecutors  in  suits  which  they  may  have  de- 
pending therein,  or  as  jurors. 

It  is  apprehended  that  the  establishing  of  circuit 
courts  in  the  several  parishes  and  districts  of  the  island, 
will  remedy  these  inconveniences  and  grievances  com- 
plained of 

Qare.—Whnt  will  be  the  legal  and  proper  method  of 
carrying  such  measure  into  execution,  and  how  far  is 
the  law  passed  in  the  inland  of  Jamaica,  on  the  14th  of 
December,  1751,  entitled  "an  act  appointing  commis- 
sioners of  7im  priu.9,  and  enlarging  the  jurisdiction  of 
justices  of  the  peace  in  matters  of  debt,"  a  copy  of  which 
law   is  hereunto  annexed,  adapted  to  the  remedy  pro- 
posed ?     We  arc  of  opinion  that  circuit  courts  cannot  be 
establi   red  in  the  manner   proposed,  but  by  an  act  of 
the  legislature    in    Jamaica,  or   by   the    parliament   of 
Great  Britain  ;  and  we  are  also  of  opinion,  that  the  act 
of  the  14th  of  December,  1751,  a  copy  of  which  (inter 
alia)  WIS  tint  us,  and  is  hereto  annexed  and  returned, 
is  not  adapted  to  the  intended  purpose,  but  is  very  im- 
perfect, undigested  and  defective:  but   to  form  a  plan 
for  such  a  law,  the  divisions  of  the  intended  counties 
must  be  settled  by  persons  well   acquainted   with  that 
island,  as  a  necessary  foundation  to  proceed  upon. 

RoBT.  Henlev. 
May  IS,   1757.  c.  Yorke. 

(41.)  The  opinion  of  the  Attorney  ami  Solicitor- 
General,  Ryder  and  Murray,  how  far  an  u<.-;  of  As^an- 
Uy  ought  to  be  repeakd,  which  would  eiulanyer  the  nyhts 


^k'  *■ 


OK  TUE  COLOMAL  CO.NSTITU TIONSl.  461 

of  purchasers  under  it,  when  a  long  acquiescence  has  oo- 
curred. 

To  the  Right  Hon.  the  Lords  Commissioners  for  Trade 
and  Plantations. 

May  it  please  your  Lordships  ; 

In  pursuance  of  your  Lordships'  desire,  signified  to  us 
by  Mr.  Pownall's  letter  of  the  2oth  of  June  last,  in- 
closing tlie  copy  of  an  act  passed  in  the  island  of  Bar- 
badoes  in  the  year  1713,  entitled  "  an  act  relating  to  the 
sprmg,  or  rivulet,,  called  the  Three  Houses  Spring  in 
the  parish  of  St.  Philips,"  which  act  your  Lordships  are 
pleased  to  uesire  opinion  upon  in  point  of  law:  we  have 
taken  the  said  act  into  consideration,  and  the  agent  of 
Mr.  Braithwaite,  desiring  to  be  heard  against  the  act 
we  have  been  attended  by  his  counsel  and  agent,  and 
also  by  the  counsel  and  agent  in  support  of  it. 

Upon  hearing  what  was  offered  en  both  sides,  we  are 
of  opinion  that  there  appeors  no  objection  to  the  act  in 
point  of  law ;  and,  considering  the  long  acquiescence 
under  it,  and  tiie  danger  of  repealing  an  act  by  which 
purchasers  on  the  credit  of  it  may  be  greatly  affected, 
we  thuik  It  may  be  advisable  to  put  an  end  to  any  fears 
of  that  kind,  by  a  confirmation, 

D.    RvDEK, 

'^  V  -■^'   ^'^^3,  ^V.    Murray. 

VII.  Of  the  colonial  judicatories  and  their  proceed- 
ings :  their  jurisdictions  emanate  from  the  King,  under 
the  variou.s  modifications  of  the  several  acts  of  assembly. 

(1.)  The  sertnd  nmfrks  of  (he  Lord  Chi<d'  Justice, 
c'.'r  Thomas  Parle,.,  and  Sir  Peter  King,  on  t'h-'  draught 
ot  a  kturfroni  Uia^  Board  of  Tvjde  to  tiie  Earl  ofi^un- 


t 


:i  '"* 


.'i*; 


'rig 


gEKl 


462 


OPINIONS    OF  K.Ml.NENT    LAWYERS. 


derlwuf,  o>i  the  jn'/icinl  prr)c"eding-<i  in  Bermvhi/^. 
Mv  Lord  ; 

In  obedi'Mice  to  her  Majostv-.s  c()imT«-  ;k1s,  si.unifiocl  to 
us  by  your  Lord.sliip's  letter  of  the  &di  of  December  last, 
upon  a  petition  and  remonstrance  to  hor  Majesty  ironi 
the  council,  a.senibly,  judges,  justices  of  the  peace,  cler- 
gy, officers  both  civil  and  military,  and  other,  the  inhab- 
itants of  the  Bermuda  islands,  praying  that  Mr.  Jones 
ma^-  not  be  restored  to  his  offices  in  the  said  islands,  un- 
til the  petilionei-s,  hy  their  agents,  be  heard  to  the  arti- 
cles for.'nerly  exhibited  by  the  ass-mbly  (jf  that  island 
against  the  said  Jones ;  and  directing  us  to  hear  them 
accordingly  :  m'c  have,  accordingly,  been  attended  by  the 
petitioners'  agent,  and  Mr.  Jones,  nitli  their  counsel ; 
and  have  heard  the  petiti<mers'  counsel  to  tlie  said  ar- 
ticles. 

The  proofs  which  they  offered  to  several  of  the  said 
articles,  consisted*  chieHy  of  presentments  and  indict- 
ments from  the  grand  jury,  at  an  assize  held  at  Bermu- 
da, against  the  said  Jones ;  and  of  judgments  of  the 
courts  upon  the  said  indictments. 

The  counsel  for  the  said  Jones  offeredt  to  give  rea- 
sons why  those  indictments  and  judgments  ought  not  to 
be  received  as  evidence  against  Jones.  To  which  the 
counsel  for  the  petitioners  o])jected,  alleging  t]iat+  ac- 
cording fo    law.  no   avcM-ment  against    the   record  of  a 

R.-nnrks  nf  Sir   Tl.nmas  Parker,    y'hi.f  Justice. 

nVer^  jud-mcnls  niul  conviclioMs,  u|K)n  record,  for  the  crimes  in  tl,ose  articles 
charged  !     (.Tht  presentments  are  nothing  ;  wc  rely  on  the  ,  oiiTiction.s  ) 

fMotwithslanding,  to  prove  by  affidavits,  the  iniio.encc  of  Jnn.s  in  tliose  par- 
ticulars. (The  judgments  were  rend  in  ciidence,  and  not  ohjceted  to;  but  Jont.s' 
counsel,  when  they  came  upon  the  defence,  went  to  conte.st  the  truth  of  th.  matter 
of  them.) 

tThc«c  convictions,  upon  record,  before  a  court  having  j,.ri»diction,  ought  not  to 


a 

OF  THE  COLOMAI^    CONSTITUTIONS.  483 

court  that  ha,  the  judicial  cognizance  of  the  case,  ought 
to  be  admitted,  whilst  the  said  record  remains  in  force- 
that  Mr.  Jones,  if  he  found   himself  aggrieved,  might 
haveproceederl  in  tlie  reguh.r  way,  by  writ  of  error,  to 
have    had  tlie  .said  judgments  reversed;    and  till  that 
wa.s  doHo,  the  .said  judgments  ought  to  be  received  as 
lull  evidence.     To    which    Mr.   Jones^  coun.sel  replied* 
that  he  liad  several  times  applied  to  the  Govciaor  for  a 
urit  of  error,  but  was  denied  it;  and  that  if  he  was  not 
allowed   to    invalidate   the  evidence   upon    which    the 
aforesaid  judgments  were  grounded,  he  had  no  wav  to 
<dear    himself  from  the  crimes  objected  against  him  by 
those  articles.  The  coun.sel  on  the  other  sidet  observed, 
that  Jones  having  petitioned  that  a  writ  of  error  might 

Remarks  of  Sir  Thomas  Parker,  Chief  Jusi  ce 
be  averred  .^a.n.,,  but  are  conclusive  proof  of  his  gu.lt,  U,ey  standing  unreversed 
u,  wn.  of  error,  and  unimpeached  by  any  .-omplaint  against  (be  wannemr.b.a.n. 
ing  tliem. 

♦That  as  to  the  judgments  not  being  reversed,  the  reason  was,  because  the  Gov 
.rn,.r  refused  h.m  wn.s  of  error,  which  ought  „...  to  turn  to  lus  disadvantage  •  and 
to  prove  U.  .hey  produced  a  copy  of  his  pet.tion  presented  .o  the  Governor  pray, 
mg  a  wnt  of  error,  and  proved  the  Governor  refused  i.  upon  presenting  the  pcti- 
l.on  and  upon  several  applications  for  the  same  purpose  after.  And  as  to  the  man- 
ner ol  obtaining  the  judgments,  not  being  impeached,  he  was  ready  now  by  affida- 
v,.s  to  shew  one  of  ,hen>,  which  was  by  .erd.c,  to  be  obtained  by  great  parttality 
and  refusal  to  hear  his  evidence,  and  that  was  .he  reason  ;,e  made  no  <:  '  nee  ,o 
ilie  real,  urging  likewise  otlier  matter. 

tObserved,  that  d.e  petition  was  not  till  May.  170C,  about  three  mon.lis  before 
Jones  iy„n,  away,  and  they  owned  the  Governor  had  refused  to  grant  the  wn.  of 
error,  p.uyed  in  Jones'  pe.i.ioii  u,  hini,  becaus.-  they  observed,  be  could  not  ^rant 
't,  for  the  petition  did  not  pray  a  writ  of  error,  returnable  before  ihe  (iovernor  in 
conncM,  where  only  a  writ  of  error,  in  that  island,  lies  .  nor  prayed  a  writ  of  error 
generally,  l.ut  prayed  a  s,«.cial  writ  of  error,  returnable  in  the  assembly  ur-^ii,.. 
rcison  M  Ins  petition,  why  such  writ  of  error  should  be  gran.ed.  And  lit's  appl" 
-aiions  lo  Ihe  Governor,  ufic.-.  were,  by  .he  atKdavii  produced  by  Jone.  expressly 
I.roved  .0  be  f„r  the  seme  «r,.  of  error:  that,  therefore,  this  was  no  excuse  for  not 
■■'^ersing  ihe  judgments,  but  rather  a  fresh  msiance  of  Ins  slisbting  the  Governor 
■Old  council  there,  whose  judgment  he  thus  endeavored  to  evade  ;  writs  of  error,  by 
ti.e  constitution,  cerii^inly.  (TMs  stated  as  if  two  dis.i.ict  things  were  asked'  by 
the  ptiinmer  :  First  a  writ  of  error;  Second,  a  hearing  before  assembly  ) 


464 


OF  NIONH    OP  EMINENT  r.AWVRKS. 


be  granted  him,  and  tliat  the  trial  of  his  ease  ni!j,-ht  he 
heard  before  the  general  assembly,  the  (Jovernor^oould 
not  allow  thereof,  as  beinjj;  a  matter  appertaining  to  the 
cognizance  of  the  Governor  and  conncil,  and  not  of  the 
assembly,  who,  alone,  by  the  eonstitiition,  have  not  a 
power  to  reverse  the  judgments  of  inferior  ('(Mn-ts. 

lint*  the  eonnsel  for  Mr.  Jones,  or.  the  other  side,  ad- 
hering to  their  opir.ion,  we  desire  your  Lo;-  Isliip  will 
please  to  lay  this  matter  before  her  Majesty,  tliiit  we 
may  know  her  Majesty's  pleasure,  >vli.>ther  we  are  to 
hear  the  said  Jones'  counsel  against  the  said  judgments, 
or  whether  they  are  to  be  accepted  as  good  evidence 
against  him  concerning  those  articles;  and  in  that  case, 
whether  her  Majesty  will  not  be  pleased  ♦:>  direct  that 
writs  of  error  be  granted  him,  to  the  end  he  may  pro- 
ceed in  the  regidar  way  tor  endeavoring  the  reversal  of 
the  said  judgments. 

W/iifeha/r  Maij   12,  1709.  T.  Parkkr. 

My   Lord  ; 

In  obedience  to  her  Majesty's  c<mnnands,  signified  to 
us  by  your  Lordships  Ictler  of  the  8th  of  Deccnd)er  lost. 

Rfmarki  uf  Sir  Thotna$  Parkrr,  Chief  Justice. 
*Tlwt  ns  to  ll.f  preuiucs  now  slarled  or|mrtii.litv  in  the  (rial,  they  oujclit  not  to 
U  'akin  notice  of,  Iwcaiis.  i|,c  agents  for  the  island  are  not,  nor  could  be,  jirepHred 
to  justify  judicial  proceedings,  against  waich,  (o  this  d«v,  there  hid  never  b"en  any 
objections  made  Hut.  that  if  Mr  T  „ic-  '.ad  ju.st  r.-.use  of  exception  on  that  head 
illind  Ix-eu  proper  to  hav-Uidu  J. -,.;.■  hev  .Vlajesty,  that  there  mi-l.i  have  h.en 
m,  opportunity  of  s;ivi„^  an   an        -   ,      ...       ^,,1,},    j.,j   ^    „«s  been  so  far  from 

doin;:,  tlmt   though  upon  a  petit. ,  ..„„sen   only,  to  her  .Majesty,  he  has  exhibi- 

t.,1  neurone  lumdied  artiele...  t.-uinsl  the  governor,  judije. ,  justices,  and  ,.ih,rs  in 
the  island,  some  of  them  for  matters  „f  far  less  moment,  and  concerning  pioce., lings 
against  others,  uherein  hinistlf  vi-as  uneoncerned,  yet  he  has  not  one  ar'irle  that  hi 
ihe  least  touches  upon  these  judijmenl.s,  or  the  j.rocee.'in-s  in  orde-  to  them;  and, 
ilienforr.  ou^'ht  not  ,r  *  i,.  be  admitted  to  set  us  these  prrtences  thus  to  invali.lale 
the  prjceedinirs  of  tlie  supreaie  ordinary  court  of  justice  in  the  islnml,  and  arrai-n 
the  judges,  »  „o  know  nnthir^  of  the  charRe,  nor  have  an  opportunity  of  making  a 


OP  THR  COLONFAI,    CONSTITUTIONS. 


^165 


upon  a  prtitioii  and  ivmonstrance  to  lior  Majosty  from 
tho  connml,  assembly,  jiidgoy,  justices  of  the  peace,  cler- 
l^y,  olluers  botli  civil  and  military,  and  other,  the  inhab- 
tants  of  th(.  Bermuda  islaixls,  pir.yin-  that  Mr.  Jonefl 
niay  not  be  returned  to  his  ollloes  in  the  sal:  islands, 
directing  us  to  hear  the  petitioners  by  their  agents,  to 
tho  articles  tbrmerly  exhibited  by  the  assembly  of  that 
i.^land  against  the  said  Jones  ;  v  •'  have  accordingly  been 
attended  by  the  petitioners'  ngents,  and  Mr.  Jones,  with 
their  counsel,  and  have  heard  the  i)etitioners'  Counsel  to 
the  said  articles. 

The  in-oofs  which  tliey  olC.iv.l  I,,  several  .,f  the  said 
articles  consisted  chielly  of  presentments  and  indict- 
nioMts  irom  the  grand  jiny,  at  an  assize  held  at  Permu- 
da,  against  the  said  Jones,  and  -f  judgments  of  tho 
coints  upon  the  said  indictments. 

Tho  counsel  for  tlie  said  Jones  (.nVred*  to  give  rea- 
sons why  those  indictments  and  judgments  ought  not 
to  be  received  as  evidcjices  against  Jones.  To  which 
the  counsel  for  the  iKditioners  objected,  alleging,  that, 
according  to  bnv,  no  averment  against  the  record  of  a 
'•ourt  that  has  the  judicial  c(,gnizance  of  the  case,  ought 
to  1)0  admitted  whilst  the  said  record  remains  in  iorce;t 
that  Ml'.  Jones  if  he  found  himself  aggrieved,  might 
liave  proceeded  in    tho   regidar  way,    by  writ  of  error, 

Remarks  ,.f  Sir   i>,ie.-  Huij;,   Chi'f  Juftia:. 
'M'urr.     ^^V..  lK,pr  ,!,..  I,,,,.,,!  „,;.  .,.„  ,„„,,,„,„  ,„  „„^^  ,„„  ^,„  ,,^  ^^^^.  ^^  ^^^^^  ^^^ 
m.x.er,  m„l  not  ns„.,  .|„„.,   ,„  „|„„„  „„,(,  ,,  ,,,,|„j.    ,,,„„„,|j.   „„,  |,^_^,^  ^   ^^^^^^ 
..  l.-m.,|  to  II,.  ,.ons,.l.rUi..n  .,f  il,,-   bo.nl,  nor  (that  «•._•  ol.serv,-.!  )  nske.l  by  Jone, 

♦Ofr,T,Mi  t.  ,li,,,rov..  l.y  ,„liauv,,s  tlu  ..ull.  an-l  vntv  of  Uk-  (V.s  ro.,ta,neJ  in 
Uk  saiil  imlietiiicnts  niiil  jii.lf;ia.  ills  lli,  rem. 

t'l'liat  the  convictions  an.l  iu,l:;„„Mis  o„  il„.  i,„l.,-in,ent.s.  wlnl.st  lliey  remain  „n- 
••"vcrse.i,  arr  conclusive  j.rooli  of  ll„.  vrnty  of  il,o  liuts  a^-a.nst  ti,e  party  so  .ndict- 
cti  and  convicted. 


HI 


466 


OPINIONS  OF  EMINENT  LAWYERS. 


fcHi 


ft . 


to  have  had  tlio  .-aid  judoiiiGiits  iTverscd  :  :ind  till  that 
was  done,  the  ,'nid  jiidi;inc'iits  oimht  to  )o  i-t'ccivcd  as 
full  evidence.*  To  which  Mr.  .lones'  eouii;el  replied, 
that  he  lia<l  several  times  ;i{)|)lic-d  to  tlie  (Jovoriior  for  a 
■writ  of  error,  hut  w;is  dt^uicd  it  :  and  that  if  he  was  not 
allowed  to  invalidate  tiie  I'xideiire  ii]ii)u  w  liich  the  afore- 
said judgments  were  uniunded.  he  had  no  Wii_\  to  elear 
hinrelf  from  the  crimes  ol.j.'ctcd  ai;;iinsl  him  hy  those 
articles. 

But  the  cou]iscl  (111  the  other  "ndc  oI)served,  that 
Jones,  ha\  ill-;-  petitioned  that  a  wril  oi  ciror  mi<;ht  he 
granted  him, 1  and  tliat  the  tiinl  ol'  his  cjise  mii^ht  ))e 
heard  hefore  the  uencial  as-emhiy.  the  (ioMTnor  could 
not  allow  thei-eol",  as  h>ini,  a  maltei-  appeitaininL';  to  the 
cognizance  ol' tlu' (li)vernnr  ;uid  council,  and  not  ot'  the 
Jisseuilily.  who  alone  hy  the  con-titution,  have  not  a 
power  to  reverse  the  judL:inents  el' iulcrior  courts.  But 
the  coini-el  on  the  otiier  siih'  adhering  to  tlicir  opinion, 
■vve  desire  _\(iur  Lord-iiips  will  ph;i-e  lo  ia\  this  matter 
hefore  hei-  .^hljesly.  that  we  may  kuou  hd'  >hij'est\"s 
pleasure,  wlietiicr  we  ai-e  (o  hear  the  slid  .lones'  coun- 
sel against  llu-  saiil  judgment^,  o,'  whether  thev  are  to 
lie  atte-ted  a-  good  e\  iiU-iice  auaiii-f  liim  coucerniiiH 
those  artich's;  and  in  that  ca  ••.  w  hellu  r  he;-  Ma  jest  v 
will  not  lie  ]ih'a-e(i  to  diiee||  ih.it  w  lit-  oj'  error  he 
granted    him,  to    the  cud  he  ma\    \u   iceed  in  the  regular 

Remark*  uf  Sir  Ptier  King,  Chief  Justice. 

•E-Hpriially  (WTing,  in  tliix  cftir,  ho  nercr  mndc  ony  proper  ami  legnl  sicp  lo  |«t 
the  saiU  jml^^nuiita  rrverMd. 

tTlint  JoixN  never  pctilioneil  for  n  IrjjBl  wril  of  t-rror  lieforo  tlir  (Jovenior  and 
council,  but  before  Uie  (iovrrntir  nnd  nssrnibly,  whioh  writ  of  error  il.iiti  not,  hy 
tlH-  Inw  or  constitiiiion  of  nrnnuda.4,  lii>  lie(<>rc  ihetii. 

IQrfic. — WIm  llur  any  ueittaiuii  lu  pray  ibii  ilircriinn  flroni  Iter  Mn  city. 


or  THE  COLONIAL  CONSTITUTIONS.  467 

way  for  on,]oav..rin-  ihr  rovoixil  of  the  said  judgments. 
IVhilJittll  Mat/,    170!).'  p    KING 

{•!.)  Ih.  ophnon  of  the  Athnu;/  (knmil,  Northey,  on. 
the  ^t^iitji-al  p'lUnj  of  the  rohtiidl  courts. 

T..tlu'  iJiirht   Il.mon.l.lo  tl..   Lords  Commissioners  for 
Tr.ido  and  I'lantaiinns. 

Mav  it  please  xoiii-  Lnnlsliips  ; 
rii   olie.lii.nee    to  your  Lnnlshjps^   order  of  reference, 
Hgiuliedi,,    .i,e    I.v    Mr.    P-ppIe,  l.y  his  letter  dated  thj 
lM  da;   ..!■  Nove.Mher  last.  1  have   peni.sed  and  c.nsider- 
nlofau   aet    pas.MJ   at    l5a.).a<lo..s  the   L'l.st    of  March, 
nO'.».  enfitlci      an  art   t..  rend.. i-  more  enectual  certain 
legacies  ^iven  and  he,p,eath-d  l.v  Captain  Williams,  de- 
<vased,    to    the    parish    of  Christ    Church,   within    this 
island,  •  and  am  humh'.v  oropini,,,!,  that  the  same  is  not 
fit  to  he  .-onlirmed  I  v   her  Ahijestv.  lor  that  the  ...vasion 
"1    passiu--  the  hill  hein-to    capacitate  tli."   ehurclnvar- 
'!".isol  ihe    parish   of   CInist  Ch,,,,.li.  in    IJarhadoe.s,  to 
take  an  a^si>:nuienl  of  lauds    \v|,i,  h   tliey  could  Mot  take 
without  the  help  of  ai-  a.^t,  not  lu'luo-  a.  eorp.,ration,  and 
lor  whi.  h   purpose  IIm-  aet  was  nMsonahl...  this  aet'does 
•""•"■'  "'■"  l"i"l'''^'->-    under  the  .  hurehwardens,  ot  the 
laud  M,  I,,  i„.  eoiuiyedtothcm  i.\  theserjt  of  armswho 
iiad  M-i/rd  thclandshya  decree  ol'ili,.  ,.,,11.  t  ol  chancery 
''"''■''■   ^''■'"  ''"''I  "I"'   <'".io\    Ihe  >am.-  a^^aiust  the  heir.s, 
executors.  adu.iui>liaiois.  and   assigns  of   Captani  .folui 
Williams    wh.,,  I,\    (|„.  aet  is   stated    tu   l,a\e    d.. vised   a 
charity    ..f    Muu  I.,  thai    parili.au.l    the  ehurelnvardenrf 
wlaueol  had  ohiaiiied  a  (hcree  a,i,Minst  Ifichnid  Williama, 
his  adnnmsiraior,  with    his  will    annexed,  for  payment 
ol'tlie  Bumo:  on  which  decree,  hmd.s   of  inhcriiauic  of   • 


ll 


468 


OPINIONS    OF    EMINENT    L.VWVERS. 


II 


the  said  John  Williams  had  heoii  soi/ud,  which  I  take  to 
be  unjust,  tor  that  it  iIol's  iiol  apjH'ar  that  tlie  testator 
had  cliaroc'd  h\<  ical  rstale  witli  that  lej,'acy,  :v,.d  lor 
that  the  heir  of  the  testator  was  not  made  a  party  in 
that  suit,  and  has  a  ri^ht  to  e(mtrovert  that  matter ;  and 
hLso  for  that  the  purehiiseiv,  under  the  churchwardens, 
are  enacted  to  hold  and  enjoy,  apiinst  the  assigns  ol' 
John  AVillianis,  diTeased,  which  will  make  void  the 
niortiiafics,  eonvcvanccs  and  settlements,  made  hy  the 
testator  in  liis  liletime. 

Jail  liar. J   IS,    JTIJ.  i]D,v.  Xortuev. 

(■').)  'lie  :,j}'nii(>n  iij  t}i<  Atlorinij  aid  Solicitor  Gtiier- 
aL  Yiirlu  ami  HVrt/i.',  i,ii  th,  r yfni/l/.^'fu-t,  lit  of  a  ioint  of 
criiiiiiiiil  Jnri'sdictitjii  in  (in:  Li '  a:aril  L'<laiul.s. 

A\iliiaiii  \\'hite.  an  inlial)itant  ol'iln'  i'<l;'nd ',r  Spanish 
Town,  which  i-  one  of  tlic  Lei-ward  Islands,  H ills  one 
Cary  tiiere  :  loi-  wjiich  ln'in'j;  appi-e'icnded  l>\-  the  (Jov- 
ernor  of  that  i-hind,  lie.  the  said  Wiiite,  prtitiDiuif  the 
chiif  Can  niur  of  all  lit,  l.mrard  IJaiuU  (l,\i  irlioin  all 
otmiiii.s-sioiis  ol  oi/i  r  ,!!t,l  I  rniiiHr.  a-illun  that  i^avern- 
iiii'iif,  an:  /.v.s//,./)  /'/r  //  sjin,/if  (nal  ' n  Spaiii.^-h  Tm^n 
alhnsvnl.  or  if  that  could  not  !;■•,  li.i-  want  of  proper  of- 
iieers  in  tliat  island  th;il  ho  niiudit  l>e  -cnt  for  to  St. 
Christophci's,  and  Iried  tluic 

Spanisli  'I'.iwn  i  an  i-find  whrre  no  coiu-ls  or  offuM'rs 
are  estahlished  \'nr  the  aihiiiuistration  of  justice. 

Tlie  cidef  (;o\crnor,  llicnloic,  cau.-.ed  tiiesaid  White 
to  l.c  i.rouuht  up  to  St.  Christoplier's,  where  he  was  ex- 
aniiuc<l  hcforc    loiu' <>!    hi-^    M- je.>fty'.s  .•ouiK'il  llicre.  and 

they   thinking   ili"n     w,is    iriva'    <  ausc   (o   misj t    fh.it 

Wiiite    was    guilty    cl*  the    .siid    uii  ..icr,  (ii.-  .^uid  .hief 
Govcrnur  awarded  a  special  comuiidsion  of  ojcr  and  ter 


'f' 


OF  '^HE  COLONIAL  CONSTITUTIONS. 


4fi9 


iihuT,  lor  law  trial  in  St.  Chri.stupher',^.  and  Wliitc  has 
mi'-c  '".ru  vonricUd  uf  the  ninr^ler  of  Ctn-if,  befon-  those 
coimuis.si  >i,a-s,  by  a  •unj  of  St.  Chri-stophtr's,  and  receiv- 
ed sciiti'ucc  of  doi"  .        'reupoii. 

The  .statute,  ;'>;](i    ='.iiry    VIll.  reciting  that  persons, 
upon    "eheinent  su.«<picion  of  treasons  or  nuinler  Ijeinf 
m;iny  times  sent   for  to  diwrs  shires  of  the   realm,  and 
(•tiler  tiie  Ivin,ns"  Dominions,  to  he  examined  hefore  the 
Kin-s  council  upon  their  oHences,  and  also  setting;- ibrth 
the  cluM-v  I  Ithe   Crown,  and  incon\  eniency  of  reman- 
diii-  such   suspected    [)ersons   after  their    examination, 
hack  to  the  jilaces  where  their  ollciictv-  were  committed, 
ior  (rial   \c.,  enacts,  that  if  any  person  heinm  t'xamined 
hy  the  Kind's  council,  or  three  of  them,  upon  anv  nuin- 
iiei'  of  treasons,  misprisicms  of  treasons,  or   nuu'ders,  do 
conless  any   such  otlences.  or   that  tli.>    ,siid  council,  or 
tlncf  ()'■  them,  uptm   such,  examination,  shall  think  any 
per.-oiis  so  examined  to  he  vehemently  suspected  of  anv 
treason,   misjirison   of  treason,    or  nuniler.  that  then,  in 
v\rv\  such   case.  ])y  the    Kind's  conimai.dment,  his  Maj- 
esty s  ((.mmission  of  oyt.'  and  terminei'.  under  !iis  -^ivut 
seal,  shall  he  made  hy  the  chancellor  of  Kn^dand  to  such 
pcr.Mins,  and   into  su(di    shn-.>s,  as    vl.;,!i   '^    named   and 
appointed  hy  the  Kin-:,  lor    the  speedy  trial,  conviction, 
nr  (leli\eraiice.  of  such  ollendeis ;   and  that,  in  suidi  ease, 
no  chalienu,.  il.r   (lie  >hire  or  hundred  siial!  he  allowed: 
willeli  statute,  thouiih    it   Ke  rei>eal.'d.  h\    the    1st      nil  I'd 
1'.  and   M.  as  to  treason  ,   yet,  il   i-^  apprehended.  il  i.s  not 
a-  lo  murder. 

(fidir  I.  Does  not  this  latnte  uukv  such  an  altera- 
tion in  the  comm.Mi  hm.  and  .-o  i  nlaiKe  the  kind's  pre- 
rogative as  t..  trials  in  luuider,  ;,s  well  m  his  eoleniesas 
in  II! '   kingdom  of  England,  that  he  ma_),  if  ho  ihmka 


470 


OPIXIOXS  OF  E>tI\E\T  LAVVVERS. 


i 


fit,  appoint  luiv  uiau  (cliaruod  with  that  offence  in  any 
of  his  colonios.  and  exainiiu'd  as  the  act  directs)  to  be 
tried  in  any  place  there,  other  than  tlie  phxce  or  ishand, 
where  the  ofVeuce  was  comjnitted  ? 

Qiirrrc  -J. — It"  such  power  be  in  the  Kijip-.  can  that 
power  be  executed  by  his  Governor  in  St.  Christopher's, 
who  is  expressly  empowered  by  his  Majesty's  commis- 
sion, to  erect  courts  of  justice,  and  issue  commissions  of 
oyer  and  terniincr,  within  this  government,  as  he  shall 
thinix.  fit;  and  c:in  a cuimnission,  in  the  King's  name, 
mider  the  se.il  of  the  Leeward  Islands,  and  an  examina- 
tion ijefore  the  Kind's  council  there,  (who  are  actually 
nominated  I)y  tlic  Kiuu,  ;iud  by  his  instructions,  called 
his  council.)  be  tak'Mi  to  be  .^uch  a.  commission  ami  ex- 
ani'iiaiioii  as  !■<  mcuit  by.  (u'  comprehended  within,  the 
wor  i>;  'irdtwioi!  ,,|  tiijs  act  :' 

(^ifdir.  :]. —  If  this  commission,  in  this  case,  be  not  war- 
ranted by  the  statute,  it  is  not.  nevertiieless,  warranted 
by  tlie  Kiiu's  ]Hcioua(ivc  in  his  colonies,  and  well  sup- 
ported by  the  powers  .Mij.ni,  which  his  Majesty,  by  his 
commission,  has -iven  to  tiu'  Governor  of  St.  Christo- 
pher"; ,  i'.id.  upon  file  whole  matter,  is  the  trial  and 
conviction  of  White  le-al  or   not  ! 

'/:.  <l,n:rv  \. — We  ari'  of  opinion,  that  the  statute  of 
33  Ih'iH-\  \'III.  cap.  •_'.!.  does  not  extend  to  the  plmta- 
tions,  and  that    there   i.s  no  ji.iiudati"ii  Iroiu  th.it  act  of 

parliaiuenl.  to  -irant    special    e  ui--ious  of  over    aiwi 

termnier.  I'oi-  tiial  of  ojlenci's  arisim:  <>ut  of  the  colony 
within  wlii(  b  -ucli  conntiission  is  ^'ranted. 

7n  'fwre  2. — This    .pie-tion   depeii.ls  upon    the    for- 
mer, and  is  answered  under  that 

'Jiitjiutyn  3. — '"'he  legality  of  the    counnission   upon 
which  White  was  tried,  will  d.         ;   npon  the  ctnistitu- 


OP  THF  COLONIAL  CONSTITUTIOX.S 


471 


tion  of  the  government  of  tlie  Leeward  Islands,  and  the 
jurisdiction  of  the  courts  of  judicature  in  St.  Cliristo- 
pher'.s,  which  is  not  sufliciently  stated,  so  as  to  enable  us 
to  giv-  '-  certain  opinion  thereupon.  If  the  island  of 
Spain  nil  is    dependent,  as  to    its  government,  on 

St.  Christophers,  and  crimes  committed  in  the  lormer 
can  be,  and  Jiave  usually  been,  tried  by  connnissioners 
of  oyer  and  terminer  in  the  latter,  tlu'u  we  conceive 
this  commi.ssion  was  well  warranted,  and  the  trial  and 
conviction  were  legal,  in  case  there  be  no  other  objection 
against  them;  l)ut  if  crimes  connnitted  in  Span'  h  Town 
cannot,  by  the  laws  of  that  government,  be  so  tried  in 
St.  Christopher's,  then-  this  e()mmissi(.n,  and  the  pro- 
ceedings thereupon,  were  against  law;  and  there  being 
no  settled  courts  of  justice  in  Spanish  Town,  we  appre- 
hend the  safest  method  of  bringing  White  io  Justice  ia 
to  send  him  over  into  England  to  be  examined  before  the 
privy  council,  according  to  the  statute  ;5;]d  Ileiu-y  VIII. 
whereu[)on  a  special  eonnuission  of  oyer  and  terminer 
may  be  i.ssued  under  the  grrat  seal  of  (iieat  IJiitain,  for 
trying  him  pursuant  to  the  directions  .,1  that  act  ;  but  as 
that  may  be  attended  with  gicat  trouble,  if  the  (iovern- 
or  lias  uutliority  by  hi,s  e(.nimissio:\  and  instruetionH  to 
erect  courts.  an<l  constitute  ollicers  of  justi.-e  in  Spanish 
Town,  and  there  are  siiUicient  inhabitants  within  that 
island,  (|uali(!"d  to  serve  uiion  the  grand  and  petty  jurv; 

then,  we   apprehend,  the    Cover •   may   grant   a   com- 

mission  of  o\ei-  .,nd  teriMiiicr,  and  a|i|Miiiii  jnoper  ofli- 
cers  for  summoning  juries,  and  ofli<>r  purposes,  m  onler 
to  tlie  trying  of  the  prisoner  v,  ithiu   S;   ,iii>h  Town, 

1*.    VoHKE. 

I'uinuKr,  18,   1725.  C.  We.vko. 


i 


Vr 


m 


tBK'tems 


472 


OPINIONS   OF   EMINENT  LAWYERS. 


(4.)   Thn  opinion  of  tj,^  yl 


on  til 


'■  jiirifidicfion  of  fh':.  ./ 


ttornoii    (hneral  M\tn'cn 


anhitca  coi/rf-f. 


To   tlu'   Kiirlit    TI 


on.    tlio    Lords    C 


1    ide  and  Plantatioii,- 


'oniiiiissionors    for 


ii 


T 


May  it  j)U'as('  your  Lordships. 
11  i)ursuanoi' ofyoiir   Lordships' _  dc-siro,    sii-iiified    to 


mo  by  a  letter  from  Mr.  Pownall,  bearing,'  (hite  the    23d 


of   Mav    last,    iiiel 


)siii<j;  a     letter    froni    Mr.    Knowl 


Governor   of    damaioa,     a('(piaiiitin<jj    your     Lordsl 
that  Mr.  Morse,  one  of  the  assistant   iudires    thero.    1 


es. 


lips 
lad 


HMil  a  eoiirt  oj'  nisi  ))r 


tl 


by  his  own  auflu  i-ity  ;  together  with  (1 
passed  in  the  island  ol' .lainaiea,  in    I) 


piins,  111  tli:   ])arisli  of  Westmorland, 
le  copy  of  ;in  act 


ecemnei 


I7:)l. 


titl 


Hi- 


ed 


an  act,  a 


ppointinj.- eommissioners   of  nisi   ])rius 


ie  peace  in 


and  enlariiin;.--  the  jurisdic'.ion  of  justices  of  tl 
matters  of  debt.  "  and  desirinir  my  opinion  whether  ^h 
M(/rse  had  any  pov cr  to  hold  a  court  of  nisi    priu 
to  hear    and  deteimiiie  causes  therein    without 
M 


md 
a  coni- 


mi.ssion  Iroiii  his  .\hi|est_\:  il   not.  what    ptmi.slun.nls   \< 


ie  proper  luelliod  oi'  pro- 


~t    in- 


io  liable  to.  and  what  will  be  tl 
ceediiiii  a;;aiiist :    And  also  by    his  le!  t,-r  ,, 
staiit.  inclosiu;;aiinther  letter  from  Mr.  Kiiowles,  ( 
nor  of  .laniaic;!,  a''.|Uiiiiitin,u;  your  Lordships  thn!  Ii.>  h 
ordered  the  .Vt(<.int  \   (leiieral  of  the  island  to  pi(H(Hiih- 


lovcr- 


iid 


Mr.  .Moi'se  for  1 


la  V  ini;'  hi'ld  a  court  o|' 


.\I 


/nsf  /,r/f'\.  w  itliout 


iic^t\- 


coiuniissioii. 


and 


liicjosiuu'    a    ( 


i>li\-    ol 


the    pinceedln-s   ol"    (ho    court    thereN|i(Mi,    and     I 
(piaint  iiM'.  that  a-  tins  aHJiir  I 


i>    ac- 


las  occa>.ioiird    ...ih  li    heat 


and  disturliance  in  the  island,  and  vour  I 
paring-  (ii  write  In  Mr.    Knnwies    theieu| 


ship.^i  be;;-   the    fa 


||rd^lllp-  ari'  jire- 
L.ud- 


liljl,      \  ''Ml' 


\"ur    (i|    iu\- 


tttuted 


>|)iniuii    iipi'u    the    case, 


111     his     liiriiier     letter    upon     tins    subject, 


an 


OP  THE  COLONIAL  CONSTITUTIONS.        473 

soon  a  ^  I  conveniently  can  ;  all  which  papers  are  here- 
with returned.  I  have  taken  the  n  atter  into  con.^idera- 
t.on,  and  am  of  opinion,  that  Mr.  Mor.se  had  no  authority 
by  the  word.s  or  meaning  of  the  .siid  act  passed  in  Ja- 
maica, to  hoh]  a  curt  of  nisi  prius,  and  to  hear  and  de- 
ternnne  cau.ses  thnein,  without  a  commission  from  his 
Maje.sty.  The  .said  act  expressly  .say.s,  any  of  the  justices 
oi  the  supreme  court  of  judicature  are  to  be  appointed 
hy  a  conmn.ssion  under  the  broad  .seal. 

It  refers  their  jurisdiction  t.,  that  of  justices  of  assize 
and  nisi  prius  in  Englan.l,   under  the  13th  of  Edward  I 
and  <.ther  laws.     Now^  justices  of  assize  and    nisi   prius 
in  England,  derive  their  autlu.rity  from  the  Kind's  coin- 
nussion,  and  never  act  without. 

In  that  part  of  the  act  whi.di  gives  power  to  ente.  up 
judgments  hy  defaults,  the  actions  are  described  to  be 
...ch  as  are  triable  in  the  country,  uj.on  the  commissions 
limvihffore  thnifi'tiial. 

The  power  given  by  the  said  act  is  plainly  copied  from 
tliecaseofju.c.ticesofm-.s/  /,./.,..  in  Euglaud,  who  act  bv 
.«ommi.ss.on,  and  has  „o  relation  to  thnt  authority  which 
IS  give,  (o  the  two  chief  justices  and  chief  banm,  by  an 
act  passed  the  ISth  of  EIizal)eth. 

If  Mr.  M.mse  acted  ignorantly,  an.l  IVo„,  a  misappre- 
luMisum  and  misconstructi.m  of  tl...  act,  I  think  he  is  not 
liable  to  a  criminal  prosc.Mition,  f..r  a  bare  error  of  ju.i.^- 
nuiit  III  respect  lo  his  jurisdiction.  "^ 

Ifhe acted  .seditiously,  incontempt  of  tlH-Kiu-'saudior- 
'ty.  and  in  .Iclianre  <.f  law,  I  think  hr  was,  and  is,  linblc 
J"  be  prosecute.1  by  infonnalion,  as  f..,- a  misdemeanor 
bat  m  every  litrht,  I  anpn.lH.nd  th-  .our.  has  do.u' 
;vr..ug  m  refusing  b.  issu.  process  upon  tl.o  inlbrmation, 
mod  by  the^  attorney-general,  and    takiug  upon   them- 

'-'  J. 


n 


Mi 


!    =  t  i 


IMM- 


474 


OPINIONS  OF  EMINENT  LAWYERS. 


selves,  as  it  were  exojfirh,  to  judge  of  the  information,  and 
to  quash  it,  not  for  any  irregularity,  but  upon  the  merits. 


tTune  24,  1754. 


W.  Murray. 


(5)  77ie  opinion  of  the  Attorney  and  iSolki4o7',   lii/der 
and  Miirmij,  on  the  jmifsdiction  <>f  the  Bermuda  courts. 

Tt)  tiu  Right  lion,  the  Lords  Commissioners  for  Trade 
and  Plantations. 

May  it  please  your  Lordsliips; 

In  pursuance  of  your  Lordships'  desire,  signifieu  to  us 
by  Mr.  Hill,  in  liis  letter  of  tlie  Sth  of  Decm1)er  last,  in- 
closing letters  and  papers  received  from  AVlUiam  Poppel 
Esq.,  Ips  Majesty,s  Governor  of  the  Bermuda  I-*lands, 
(which  are  herewith  returned,)  and  desiring  out  opinion 
upon  the  cases  therein  stated:  with  respect  to  the  case 
stated  ))y  the  chiof  and  as^istant  judge  of  the  King's 
bench,  in  the  Uernuid;i  Ishmds,  we  have  taku  it  into  con- 
sideration, with  the  several  iji/ffrics  subjoined. 

As  U  the  lirst  ijiuerr,  we  are  of  opinion,  tliat  the  judges 
of  the  King'^  l)ench  had  full  power  to  issue  their  pre.-ept 
to  the  freeholders,  and  con. pel  them  to  execute  it  in  the 
case  ]n\f,  of  a  justice  of  peace  resigning,  notwithstanding 
that  particular  instanci-  is  not  menlioned  in  the  enumera- 
tion, the  plain  intent  of  flu'  act,  in  that  part  of  it  which 
is  referred  to.  being  to  supply  the  want  of  a  justice  of 
peace  where  that  might  happen,  from  whatsoever  cause 
that  want  might  arise;  nor  are  the  words  incapable  of  that 
precise  I'onstruetlon,  the  wonl  inability  of  anv  justice  of 
peace  being  eipialiy  ap])lieable,  even  in  a  proper  sen.se, 
to  the  ea^i'  of,!  lustice  who  disables  himself bv  resifua- 
tion,  as  to  that  ofdue  di>alilcd  b\  ;iny  otiier  means. 
As  to  the  >e<'ond  and  tliiid  </i/u  /■/is,  we  are  of  Oj^inion 


of*  THE  COLONUI,  CONSTITUTIONS. 


475 


that  the  freeholders  to  whom  the  precept  was   directed, 
were  guilty  of  a  contempt  of  the  court  in   disobeying  it 
and  may  be  punislied    in  a  nummary    way  by  order  or 
rule  of  court,  with  fine  and  impi  i.^onment.     Though  thl^ 
method  is  proper  to  be  taken  to  support  tlie  authon'ty  of 
the  court,  yet  we  think  the  court  might  hav^  proceeded 
to  hear  the  causes,  and  impannel  juries,  out  of  such   as 
were  returned,    according    to  the    act,    and,    therefore, 
were  under  no  necessity  of  creating    that   delav    to  the' 
suitors,  which   must  have    arose  from  the   a.fjourment 
till  this  point  on  the  construction  of  the  act  could  be  set- 
tled.    We  mention  this  in  order  to  prevent  the  ill  conse- 
quence for  th«  future  of  suc'i  delays,  in  case,  hy  any  ac- 
cident, due  returns  should  not  be  made  of  jurors    here- 
nfter,  which,  we  think,  should  not  stop  the  course  ot  jus- 
tice, in  case  there  are,  on   the  whole,  jurors  sufficient 
for  the  ])usiness  of  the  court. 

With  respect  to  the  caseaud  ;//,.r/v>,9,  stated  bv  Gover- 
nor Popple,  in  his  letter  of  the  8th  of  July,  1749.  There 
are  four  qua   Vs  which  he  makes:  to  the  t"wo  first,  we  are 
of  opinion,  that  hoth   the    whole   acts    in    the  times    of 
Governor  Pitt  and  the  present  Governor's  brother,    are 
determined,  and  each  ceased  or  expire.!  on  the  determina- 
tion of  the  govennent    of  the    respoctive   Governors  in 
whose  times  those  laws    were  made;     to  the   third  and 
fourth  qnaries,  we  think  as  the  country  had  the  benefit 
of  the  free  enjoyment  of  the  fishery,  they  'M,irl,t,  d„rii,g 
the  yenrs  of  that  enjoymeut,  to  make  good  the  011^11111"- 
dred  pounds  sterling  a  year  to    Governor    I'oppl...     The 
method  ofreliefis  by  his  Majesty's   recommending  it    to 
their  assembl<-. 


April  13,  1750, 


I).  KvDEn. 
W.  Murray 


m 


1 1 


i 


476  OPINIONS  OP  EMINENT  LAWYERS. 

(6.)  J//-.  Zumb's  opinion  onthero^ntsof^'onlh  Carolina. 

To  the  RiirhtHon.  theLvuxls  Coimnissioners  forTnule 
and  Plantations. 

My  Lords; 

In  pursuance  of  your  Lordshi])s'  ooinnmnds,  sig-nified 
to  me  by  Mr.  Hill  's  letter  ot'the  ITtli  of  October,  1747, 
I  have  perused  and  "onsidend  the  following  act,  passea 
in  South  Crrolina  in  Jinie,  1747,  intitletl  "  an  act  to  em- 
power two  justices  and  three  freeholders,  or  a  majority  of 
them,  to  determine  in  all  actions  of  debt,  where  the  matter 
m  dispute  doth  not  ex  -eed  twenty  pounds  current  money, 
which  is  now  equal  to  four  pounds  proclaiyation  mone^ 
and  is  not  more  then  seventy-five  pounds  current  money 
which  is  equal  to  fifteen  pounds  proclamaticm  money." 

Since  this  act  has  been  under  my  consideration,  I  have 
been  attended   by  the  pmvost-mar.shal  of  this  ijrovince, 
on  ])ehalf  of  himself  and  other  patent  officers  there  -  dio 
have  petitioned  against  the  passing  this  act,  and  I   have 
heard  th'Mr  several    obj'ections   thereto,    and   also  have 
heard  the  agent  of  the  said  province  in   support  of  the 
sa-.J  .irf,  and  shall  here  represent  to    your  liOrdships  in 
what  light  this  act  appears  to  lue.     I  find    that    iu  the 
year  KiD'J,  an  act  passed  in  lliis    province,   intitled  "  an 
act  for  the  trial  of  snudl  and  mean  causes,    wherein  (mo 
or  more  justices  of  the  [jeace  were  .-mpowered  to    deter- 
mine  actions  not  exceeding  forty  shillings  v  urrent  money, 
which  was  to  contimie  for  two  years."     This  act  was  af- 
terwards revived,  from  tiuieto  time,  and  in  1712  was,  by 
an  act,  made  perpetual;  and  in  1721,  au  act  passed  where- 
in on.' ju-ti<'e  of  the  pca-'e  was  eiupou\"icd  to  deteruiiue 
actions  not  exceeding  ten  pMimd^  cun-cut  dkuicv,  orfortv 
shiljiug.s,  This  act  was  rcpcdcd  iu  172(1,  and  an  act  then 


OF  THE  COLONIAL  CONSTITUTIONS. 


477 


passed,  wherein  one  justice  of  the  peace  was  empowered 
to  (k'tennine  action;'  not  excee.lin.ir  twenty  pounds   cur- 
rent money :  and  there  are  tees   appointed  in  th(   e  acts 
for  the  justices  and  other  officers,  for   the    execution    of 
the  sune.     Thus  tliese  acts  stood  till  June,   1747.  when 
the  net  now  under  reference  to  mepas.-ed:  and  [  hiid  this 
act  to  he,  in  many  respects,  difTere-.t    from    the   former 
acts,  and  that  there  ;!iv  man\-  good  and  ])roper  (dauses  in- 
sertetl,    supp...sing    that  the    foundation  of  the  act  was 
proper;  Init  it  must  first  he  considered,  whether  the  same 
reason  will  hold  for  .so   sunnnarv  a  wav  of  determinino- 
actions  not  exceeding  twenty  pounds  currency,    as   the 
law  stood  hefoi-e,  as  for  .so  large  a    sum    as   seventy -five 
]K)uiids  currency,  which  has  l--en  represented  to  me   to 
be  e(pial  (  •  tweleve  pounds  sterling,  which  is  a  large  sum 
in  thac  coui.try,  and  the  greatest  part  of  the  actions  are 
within  that  sum.  At  present,  the  Kings  court  of  common 
pleas.  I)\  jui'ies'  determine  these  actions  as  they  do  here; 
hut  hy  thi-  net,  actions  wiihin  that  sum  will  not  he  cog- 
nizable th.  ,<>,  but  only  before  two  j..  4ices  and  three  free- 
holders, or  the  >aajority  of  them.     This  is,  undoubtedly, 
a  great  ])ower  invested  in    such    a  judicature,  and  mo-e 
so,  when  by  this  act  one  justice   is  empowered  to  ma'ce 
the  whole  court,  Iiy  summoning  any  other  justice  a  id 
any  three   freeholders  he  thinks  proper;   and  this  would 
l)e  fnrtlier  liiil)le  to  the  -reatest  ol»jection,  was  tliere  not, 
l)y  this  act,  liberty  to  appeal   from  any  judgment  to  the 
<'ourt  of  coiiimon   pleas.     This  kind  (.1'  .judicature  origi- 
nallv  arose,  I  imagine,  from    the   court  of  ctmscience  in 
the  city  of  London,  Avhich  was  at  tirst  C(Uifined  to  lorty 
shillings,  and  now  ccmtinues  the  .same  ;  but  this  has  been 
.IS  ajjpcais  before,  increasing  iVom  time  to  time,  and  was 
as  1  am   informed,  attempted  to  be  canied  mu(di  higher 


p 

I' ! 
ii 


-IV 


■?■•"■  ( ,    J 


<; 


t  f 


^,'S 


OPINIONS  OF  EMINENT  LAWYERS. 


than  by  this  act.      At  present,  the  execution  of  all  pre 
cess  upon  these  actions,  is  by  the  provost  marshal  or  his 
deputy,  who  is  an  officer  hy  patent  from  the  Crown,  and 
give-,  security,  and  acts  in  the  same  capacity  r.s  sheriffs 
do  here ;  but  hy   this  act,  that  part  is  thrown  into  the 
hands  of  tlie  constable,  who  is  to  levy  all  m.oney  upon 
executions,  and  to  pay  it  over  to  the  justice  of  the  peace, 
who  is  to  pay  it  to  the  plaintiff.     This  appears  to  me  to' 
be  liable  to   objections,  on  account  of  the  sufficiency  of 
the  persons  in  whose  hands  the  money  is  to  come  upon 
these  actions,  who  give  no  security,  and  the  difficulty  of 
recovering  the  same  from  them ;  and  I  beg  leave  to  oh- 
serve,  that  there  are  no  exceptions  of  debts  due  to  the 
Crown  within  the  compass  of  this  sum,  .vhich  must  also 
be  levied  by  the  constable,  and  not  by  the  King's  offi. 
cers.     There  have  been  many  objections  laid  before  me, 
as  to  the  imp  icticability  of  executing  this  act,  and  the 
hardships  of  the  present  patent  officers,  who  will  oo  de- 
prlved  of  their  ])rofit  by  the  Joiisiness  from  which  their 
fees  arise  being  diverted  to  another  cliannel ;  but  to  that 
it  has  been,  and    1  think,  may  be,  answered,  that   their 
fees  are  not  by  this  act  given  to  any  other  persons,  nor 
are  they  lessened,  and  if  it  be  necessa-y  ''ir  the  public 
gc-^d  that  such  a  judicature  as    is   •    tended  by  this  act 
should  1)e  erected,  that  private  advantiiges  of  the  officers 
ought  not  to  interfere.     1    shall    tuiiit   the  many  things 
that  have  Ixjen  suggested  to  nu'  for  or  against  this  act, 
as  I  think  the  two  points  upon  which  this  act  is   to  be 
determintd  are  b  'fore  menti med,  and  am  of  opinion,  that 
what  is  allege-  ii  r,ie  preamble  of  this  act  (which  is  the 
same  as  was  in  .he  tirst  act  of  1G92,  for  forty  shillings 
currency)  should  be  fully  proved  Ijefore  the  same  should 
pass  into  a  law,  whereby  the  trial  of  such  actions  in  the 


4i' 


OF  THE  COLONIAL  CONSTITUTIONS. 


479 


King's  court  of  comnion  pleas,  by  juries,  are  taken  away, 
and  put  into  such  a  petty  court  of  judicature ;  and  that 
the  officer  under  buch  court,  to  executed  the  process^ 
should  be  of  sufficiency  to  answer  to  the  King,  as  well 
as  the  subject,  for  his  behavi(>r.  This  act  took  place  im- 
mediately ti  m\  the  passing,  and  is  to  continue  five  years, 
and  there  is  no  clause  suspending  tlie  execution  thereof 
till  approved  pursuant  to  the  Governor's  instructions. 

Lincoln's  Ian,  Jan.  30,  1747.  Mat.  Lamb. 

(7)  On,  the  court  of  chancery,  in  Barhadoes,  hy  the 
Attorney  Genci-al,  Northcy. 

Totne  Right  Hon.  the  Lords  Commissioners  of  Trade 
and  Plantations. 

May  it  please  your  Lordships ; 
In  obedience  t<y  your  Lordships'  commands,  signified 
to  me  by  Mr.  Popple,  1  have  consider  "^  f  the  annexed 
petition  of  Mr.  Thomas  Maycock,  -nd  ha  heard  him 
and  also  the  agents  for  the  island  of  Barl)adoes  who 
desired  '.o  be  heard  concerning  the  same,  and  who 
allege,  that  without  time  be  allowed  them  to  send  to  the 
island  v\  Barbadoes,  for  authentic  accounts  of  the  pro- 
ceedings of  tiiL-  court  of  chancer},  complained  of  by 
the  petiticm.  they  cannot  give  any  answer  to  those 
complaints,  and  Mr.  Maycock  hath  produced  to  me  the 
athdavits  hereunto  annexed,  to  prove  the  matters 
suggested  in  his  petition  :  on  ])crusal  of  which,  and  the 
petition,  it  seems  to  me  petitioner  liath  been  hardly 
dealt  with  if  what  is  s*,  .i  be  true  ;  for  by  the  course 
of  courts  of  equity  in  England  if  the  defendant,  being 
served  with  process  to  ai)pear,  is  in  contempt  for  not 
appearing,  and  the  |)rocesst's  of  contempt  have  been 
carried  to  a  se(j[uestratioii,  the    defendant   appearing  by 


m 


%^ 


m 


480 


OI'IMONS  OK  EMINENT  LAWYERS. 


t^- 


liis  auornov.  ;m(i    pnyini.-    the  fosts    the    i)I;iiiitifr  hath 
heciiiit  ill  pro^^ociitinu-  on  such  oontctupt.  the  soijuestra^ 
turn  and  all  other    process  roiiiidod  o,      ludi    r,,ntfi!ipt  is 
to  I)c  sft  a<i(l('.  and  the  dol'i'iidant   hatii    ri-lit.  if  aI)sont 
at  distance     ■..ni  th-  plae(>   where  the  curt  is  hehh.ii    to 
have  a  com    dssion  i,,  take  his  answer.      In    this  case,  it 
ai)pears  l.y  the  petition  and  aUidavits,  that  the  attoni'ies 
ol  the  defendant    did  desire  to  appear   for  liiin,  and  the 
aihdavit  is  that  the  costs  were  oO'ered  to  lu-  pai.l,  hut  the 
attornies    prayed  to  Ih«    made   partf..^  to  the  suit,  which 
could  not  !.e:   for  if  ,.o,   the    plaintiff   wouM    huvc^   heeu 
deprived  of  the   di  ,  overy    he  had  a  i  i-ht  to  have  from 
thedcH-ndant  l»y  his  oath,  l.iit  they  should  have  appeared 
li'i-  him.    i,nd    prayed  a  coimnission  to  tako  his    answer. 
wliKdi  I  do  not    ohserv.'    was  do,,,.;   yi  it  ;.-.   ali.-cd  hy 
tiir    petitioner,    that    the    prayer  t.    have  tlu^    altornie< 
inadepar(ie>  is  according- to  the  c,,, slant  prarticeof  the 
inlands,  whmv  the    parties   thenis.dv.-  arc    ih.ent.      iJut 
thr  defrndani  M„irh(  (o  have  h.en  adinitte.i  to  appear  hy 
utiormy,  and  uas    i,.,t    hoim.l  to  appear  in  per.soii,  a.s  it 
is  sworn  was  insiste.l  on.      This  howev.  r.  is  hiit  the  fact 
iis  il  i.s  .(ated    l.\     .,„(•    side,    the    olhe,-    not  hav  iiijr  i,ad 
"ir":tiinity    f.,    he    heard,  and.  for  thai  leaM,,:.  I  am  of 
"pinion    her    .Majesty    will    not  he   .uivi>cd  to  m.ake  anv 
.such  order  lor  the   p.-titioner'-  ivliefi-  i^  prated  hx   the 
potition  :   he;ddes,   it    is   nut    ns,ial    for    her    .Maie^ivto 
ii<(<'ipo>,.  in  cuiLses  I.etween   party  and  partv    .lepmdinu' 
in  Imr  .Majesty's  c<,urts  of  justice,   hy   gjvin-    directions 
in  uh.i      I, inner  (he  j.idires   of  .^uch  conrfs  shall  proceed 
therein  ,i.M-  \Ndl  il  ',e  pn-p.-r.     f.ir  thai  wlc^n  there  shall 
'"■^"'  •'I'l"'''  '■•'■   '   ""■    ""■'!    <l"'Tc.'i,i  MKh    cau.se.s,  the 
Name,  and  all  the    p.oeee<lin;,'s    therein,    are    to    In-  1,  M 
hefor.'  her.Majest.N   lor  her  royal  dotern.ination  thert'ou  : 


OK    THE  COLONIAL  CONSTITUTIO'  S. 


481 


yet  on  ilu'  lianl  circuiiisUincos  of  tlio  petitidnor's  case, 
appeariiiL^  In-  the  aiuiexcl  aiHdaxits,  a.iil  I'ur  Ihat  it  hath 
hocMi  aihiiittcd  hy  tlic  aircnts  lor  the  ishuid  (»1  iiai1)a.loos 
tliat  tlic  iiiaiiiicr  (il-pnici'fdiiiir  in  thi  case  is  new.  and 
what  liath  nut  heen  nWw..  if  at  ;iil.  n-ed  in  that  ishuid,  I 
su})niit  it  to  yrui-  Lordsiiips'  eonsiderai  ion.  whether  a 
copy  of  tlie  petition  may  not  ])roperly  he  ti-ansniitlod  to 
the  (jovernor  of  that  island,  with  an  account  of  the 
course  t)f  i)rocei'din,ir  of  courts  of  eipiity  in  Knuland  in 
case  of  C("ii.'ni|its.  and  liow  the  same  have  heen  liere 
dischari:;ed.  dircctinLT  tlie  (iovcrnor  t;)si'c  tjia'  iu.-tice  he 
done  the  p.  'itioner  if  it  hath  heen  denied  him  idtherlo. 
I>(('(iiii.  r  C>.  IT"").  Enw.  Nciunnv. 

(8.)    7//     npiiiioH  of  Mr.  Jaiisuii,  i))i  tlir  jioira-  of  the 

(rol-f  j'll(li:9,  an    ('InlllClUlIf-^,    or,,-    l,flnfs\ 

To  the  "Riulit  Ilonorahlc  tlie  Lord<  Commis-ionors  for 
Trade  and  IMantatinns. 

.Ma\  it  ph'a<(>  your  Lordships  ; 

In  humltle  oludienco  to  your  Lordship?'  connnands, 
siijnilied  to  mr  iy  Mi.  i',  \Mi;dh  ly  liis  letter  ol' the  Kith 
of  Deecni'  r  la-!.  I  ha\"  pi'cparcd  the  ih-in-lit  of  a 
clause,  i;i\  in^r  ill  ilic  (iovornor<  of  llu^  phmtation-.  ns 
clinncenors.  th  necessary  ])owcr  to  issue  conuuis-iion  for 
the  care  and  custody  of  idiot.-  and  hiniiticvi,  airreeahlv  to 
the  11-  |.j;..  an  I  practice  of  this  Ivin^doni. 

.\nd  when-as  it  liehdiL'cth  to  iH,  in  rjtrht  '.if  our  io\!il 

|ircroiiati\-c.    to    hav   the    cii- tody  of  idiots    and   their 

estiites,  and  It)  lake  the  projil-   tlcrcof  to    our    <t\\MU-e, 

findini:    them    necesyiuies,    and    also  to  jirovide  for  the 

cuv|od\  of  lunatics  and  their  o.xtates,  witiiout  taking  the 

profits  thereof  to  our  own  use  :  and  whereas  wliile  such 

idiots  nnd  liniatic';.  and  their  estntos.  remain  under  our 

iuiUiediaLo  care,  great,  tiouhii  and  <  har^es    may  tu'iio  to 
62 


^  :1  :  .  i 


J 


482 


OPINIONS    OF  F^riNKNl'   I.AWVERS. 


such  ay  .shall  have 


tidii?^ 


oecasiuu  to    rosort  unto  iis  I'or  dii' 


oc- 


respoctino-    such    idiots    and  hniat 


ics    and    their 


estates  ,  and  considorino-  that  writs  ol"  enquiry  of  idiots 
and  hinatics    are  to  issue    out    of  our    several    courts  of 
chancery  as  well  in  our  province:,  in  America,  as  within 
i^\    our    Kinu-doin    respectively,,     and    the    in({uisitions 
tlieieupon  taken  ari'  returnaiile  in  those  courts,  we  have 
thonulit  fit  to  intrust  you  with  th' care  and  conuuitment 
of  the  custody  of  the   said  idiots  ami  lunatics  and  tlieir 
estates:  and    we    do  hy  thes.-     p>',-sents   uive  and  L'-ant 
unto  you  full    power   and    autiiority,  without  expectiiii;' 
any  l'(,rther  special  wanant  from  us  from  time  to  time,  to 
.Uive  oi'd  ■!•    aiul   wan-.!ut    lor  tiu-  prepal•in^^■  of  -rants  oi' 
i\ir    ci.<lo.lie-    «)f  su(di    idiots    and    lunatics    and    tlieir 
estates,  a>  are,  or  sf     I  I,,.,  iouu.l  hy  inqiiisilinns  thereof 
taken  or  to  he  taken,   and    retiunihlc   into  our  con  .  of 
cliancerx      and    llieivii[)on  to  ui.iLr  and  pa>s  -rants  and 

cominil'nent>  under  our -reat  seal  of  oui' iMovince  of,— 

of  lliecu-lodicsof  ail  and  r\ry\   >uch  iiliots  and  lunatics, 
and  llieir  otatc  to  sucli    person    or  per.-on^,      uitoi's  in 
that  hchalf.    a<    accordiu-  to  ijir  i  nie-  of  lav,,    ;iu(l  tlie 
u>e  ami  practice  in  the  hke  case.«*,    yon  >hall  jud-e  inci't 
l"r  Ihat  tru>t  ;   ihe  said   -ranis    au-l    .ouimitnient  lo  In.- 
made  in  such  mannei-  and  form   <<v  :\<  \u:\i\\  as  niav  he, 
as  li.ilii  |„-cn  hcretolore   u.-ed    and    accustomed,  makini; 
the  Hjime  iPidci   the    jrreat  seal  of  (ireat     Ihitain.  a.i'!  to 
contaui  su(  li  apt  auo    coiivcuicnt    cMnau       pro\  i>ion.s, 
and    aMc.'iiiints.    on     ll,,-    pait..|    llic    ■  (.nnnittec      and 
K«'imlefs   to  he    p   lion,;, .(I     .uid  sncli  .^ccin'il\  to      ■    hv 
theui  -iven,  as  shall  he  ivqui-ile  and  nredfid 

lot/t  July,  177L'.  I!n.  .I.MKsoN. 

(9.)  A  m'ondojtiitinn  „/  t!>r  y.anu  hnnj'  r,<})i  tin    ■sttmr 
sufjat,  in  a  kUti  to  tUc  ^Sucrduty  of  the  Board. 


OF  THE  COLONIAL  CONSTITUTIONS.        483 

Dear  Sir: 
This  accompanies  the  dr;ui<>;ht  ofa  clauHe  to  ])e  inserted 
in  the  coniniissious  of  (lovei-nors  in  tlie  plantations', 
rcs|)cctin,<>;  hmatics.  &c.  It  is  very  nearly  the  same  as 
thf  warrant  under  whicli  (lie  cliancellors  of  Great 
IJritainact  ;  which  1  timuslit  advisable  (havinji  at  (irst 
framed  it  in  Avords  more  diilerent.)  liecanse  the  care  an<l 
<'Ustody  of  luna*-ics,  kc.  nmlcr  a  known  instrument 
(many  \ears  acted  under  in  this  kingdom)  is  more  likelv 
to  he  (Kjret'ahhi  to  f'le  ilsikji'  atui  pnirfhc  of  'lic:  railin, 
than  \m>\vv  an\  sot  of  words  newly  devised.  The 
alterations  I  have  therefore  maiK".  are  onl\-  to  suit  the 
clause  to  that  in  which  the  two  countries  din'er. 

The  warrant  of  the    Kin- to    tlic    eluuKellor    assi;j;ns 

his    custody  of  (h,>    t;,-eat     ■c.il  a-    the  reason   whv  the 

authority  is  dclc-ated  to  liini     tiiat    reason  is  preserved 

in  the  (h-ausrht  i  send  you,  ai       so    fir    the    commission 

-ontaiuinj:    sucli   a    clause    will    ;Liive  tlio  i   .wcr    to  the 

li-overnor  as   chancellor    (or  as  presi(h'nt  of  the  court  of 

chancery    in    coloniivs  where  he  i<  so)    liut  ii    cannot  he 

more    incorpoi  ded    into    the    office' of  chMineli,,,',    ;is  I 

roneoive,    hecau^c    neither  Ih.'  warrant  in  Kn-land,  nor 

the  commi-i-n  in  the   c,,loiiie<  do<>s  or  slionid    confer  a 

.i"''i'i''l  '"dhority  :   that,    the    <-liancellor  liad    h.^fore,  in 

in;i(ter>  of  e  ,iiity,   and  the  courts  of  law.    in  matters  of 

'■""""""  '•'"■  i>"  the  ca  enf  iiiiiatics  and  their  e>tale^,  us 

well  as  in  the  ea^e  of  all    <,tliei.       'n,,-  warrant   in   Kn;,^- 

land,  therefore,  I  think,    onl\    -ise.    jxiuers  ,,f  ,„//,,„„>. 

tvdtloi,  <r>n/  ),i,ni,i,/nnnif.  :\uA  |oi   tnat    pmpose  |.uts  the 

''''"'"•''I''"'  ■■■  "'<•  I'l'i'c   of  II,..  Ki,,o       It  ,.,    ,,,„.^ti.m  ill 

law  or   e,piit\    arises,  that  ,|Ue^tioii    ea,,  ,,mI\    I.e  decided 

l)y       ImII  or  action,    iude>.  it  he, a  (|ues|iun    Iwiween  the 

I'lnatic    an.i    his    coniinittu<',    \s  hich  the  lunatic  himself 


lrf^:ili 


I  f  j 


IL^tiyri  I 


*      • 


481 


OPINIONS  OF   EMINENT  LAWYERS. 


C'juld  have  dec;, led.  had  he  onioyod  ihe  use  of  his  senses. 
These  toosliould  be  the  h:)u,uls  of  the  G  .veni'jr'.s  power  ; 
and  I  iiave.  Uiereliiiv,  chosen  the  exoression  of  an 
iuslriiuieiit,  Ihe  foree  and  elfeel  of  whieh  have  been 
long  understood. 

1-M  July.  I(n,„    J^tKsON. 

(10.)  llu:  oj)inioL  ■>/  tJv^  Att'inuij  niul  S  Jailor,  Puj.J.ir 
and  Stni.tye,  on  the  u-cvtiii.j  of  a  awt  nj  cxc/tcr/uer  in 
ihe  colonics. 

Qiuere  1.  AV'hether  ihe  Crown  has  by  the  prero-rative 
a  power  to  ereet  ;i  eourt  )f  exdieiiiier  in  Snuth  Carolinii ; 
and  in  what  manner  such  cont  slionid  be  ere-jted  .'  \Ve 
are  of  opinion,  that  the  Crown  has,  bv  ihe  prerogative, 
powiM-  to  erect  a  court  of  exeheqiier  in  Soutli  Carolina, 
which  may  be  dime  by  kdters  pabait  luuU'r  the  seal  of 
the  province,  b}-  virtue  of  his  Majesty  s  commission  to 
the  Governor  for  that  purpose. 

1'.  What  powers  a  ourt  so  estal>lished  will  have? 
whcfher  they  wi"  extend  as  far  as  the  .-ourt  iexcdiecpier 
in  England  ;  and  wbetlier  the  [.roeeediuK's  therein 
pllindd  be  the  sauio  as  in  Enjiland  >  We  are  of  opinion 
that  Ids  Maj'e-  ty  nuiy  iMect  a  euun  <,|  exclieipier  in  South 
Cnoliua,  V.  llli  tbc-auic  powers  as  the  (  oin-t  of  exeheipter 
here  has;  we  think  the  prweedings  in  -iicb  new  erected 
court  sh  .aid  be  ao-rt'cably,  as  near  n-  uij:y  be,  to  the 
practice  here. 

3.  Whether  the  Gov«'rnor,  ly  his  eoiiuuissiou  or 
in.structions,  be  sulliciently  empowered  1.1  appiaiit  a  (hief 
baron;  and  in  what  manner  such  chn  i  l-nnn  should  be 
appointed]  We  think  the  general  [.nwer  of  .-reeting 
cnurt.-i  of  justice,  n.s  given  by  the  connni-i.a,  (,,  Mr. 
Ujr^ey,  would  bo  suUicicut  ty  autlioriiie    hiiu  to  appoint 


OP  THE  COLOMAL  CONSTITUTIONS, 


485 


a  c 


hief  biinm;  hut  as  by  the  39th  in^<trueti.)^  the  Crown 
seems  tn  reserve  to  itself  the  consideraliuu,  whether  a 
standiiitr  court  of  exchequer  should  he  erected  or  not, 
and  as  douhts  have  arose  in  the  province  touching  the 
authority  of  the  present  chief  Ijamu,  we  conceive  it  is 
not  advisal)U'  to  rest  the  authority  of  erecting,'  such 
court  and  appoi)iting  the  chief  haron  on  the  present 
connnis>ionand  instructions.  Init  yet  it  would  he  more 
proper  (if  his  Majc^y  shall  he  so  plenscd,)  hy  a  special 
conanission  to  his  governor,  to  iiuthorize  the  establish- 
ment of  sucli  ii  court  and  the  constitution  of  the  chief 
bnron  ;ind  other  officers  of  it. 

i-l-/l  Juncl-ir^S.  J..STR.ANGE. 

D.   KVDER. 

(11.)  7  /ir  A  If  >nit,j  Gemviil  NorCuifn  npii,:-)  i,  on  an 
net  of  111':  Uarba'loe.i  Asiunhhj  t,  ..ocX:  the  cntml  of  an 
siflatJ. 

To  the  Tiight  Hon.  the  Lords  Commissioners  for 
Trade  and  Plantations. 

May  it  ])lease  yom-  l.ord>]iips. 

In  ohedieuiM'  to  vour  i.ordslii|)s"  eouimands,  signified 
to  me  1,\  Mr.  ['opple,  I  have  consid(.red  of  the  enclo.sed 
act.  pas-ed  in  15:irhadoes,  intitled  'au  act  to  dock  tlio 
entail  ol'  Mount  I.ucie  plantat'on,  and  otiier,  the  estate 
in  this  island  vl'  .b.hn  Faieie  IJlackman  Km|.  ami  to  vest 
the  same  in  the  said  John  Lucie  Hln.kman,  in  fee  simple," 
uliieii  ael  hath  lain  with  me  ,-inee  tlie  hdh  of  l-'ehniarv 
last,  heeau-e  I  enuld  not  proenre  a  >i-lit  of  tjie  wills 
tliei-em  mentioned.  i)iit  liaxing  umu  -, en  and  jieiaised 
the  same,  I  have  no  ohjertion  a-ain  t  the  .-aid  act.  hut 
am  of  opiuin,,  tliat  the  sam  is  \ns{  and  reasonable,  and 
lit  In  ho  approved  ot  by  his  Majesty,  especially  fur  that 


\m 


1 1%. 

I      i  i 


i^^£& 

mM 

mn 

.  ,  1 

486 


OPINIONS  OP  EMINENT  LAWYERS. 


I 


hy  the  laws  of  Barl)adoes,  a  deed  registered  in  that 
plaututiou  (where  common  recoveries  arc  not  suffered) 
will  be  as  effectual  a  har  as  an  net  of  assembly,  Init  Mr. 
Blackmail,  living  here,  hath  been  advised  that  an  act  of 
assembly  will  give  most  satisfaction  to  a  purchaser. 
7lh  Ocfj^>e/;  171-5.  Ewo.  Northev. 

(12.)  Ihfioi.ininofthe  Solicitor  General  llvmi^ou,  on 
the  same  ■■^'ubjrrt. 

Sir : 

In  obedience  to  the  comma-ids  of  the  Lurds  Commis- 
sioners of  Trade    and    Plantations,  signified  by  yours  of 
the  4th   instant,  I   have    considered  the  act  to  dock  the 
entail  of  certain    lands  in  the  parish  of  Chrish  Church, 
in  liarbadoes,    and    of  several    negroes    ihereon,  and  of 
land  in  the  town  of  St.  Michael,  and  to  vest  the  land  and 
negroes  in  Chrisbimrch,  in  Alice   Tickle,   spinster,  and 
the  land  in  the  town  of  St.  Michael,  in  Francis  Jemmott, 
his  heirs  itnd    assigns    for    ever;  and  1  am    humbly   of 
opinion  that  the  act  is  very  proper,  and  is  only  to  supply 
the  place  of  (ines    and    recoveries,  by  which,  according 
to  the    law  of  Kngland,  these    partio  in    whom  the  fee 
.simple  of  thi-sc    ,->tntes    arc    now    vesti-d,  might,  if  the 
e.states  were  in    Kngland.    have   effectually  st-ttled  it,  as 
by  this  a.  (.and  bimv,!  all  remainders;  so  I  cannot  think 
tiiciv  is  any  objection  (o  ||u.  pussing  this  act. 

li'i//^  S,j,trmhcr,  1717.  W.M.  Tmo.mson. 

(l:'..)   Tlu:  opinion  nf  (h,    Attorns ;,  (ir^n  ntl  Xortlu;/, 
on  the  \;i/'i,-  .sn/.j,,  t. 

To  the  Ixjuhf  Hon'!r>'i'i-  '!i-  I     .- 1     r"  •     •  i> 

Trade  and  I'lantations. 


$ 


OP  THE  COLONIAL  CONSTITUTIONS,  487 

May  it  please  your  Lordships  ; 
In  obedience  to  your  Lordsiiips'  commands,  sicrnified 
to  me  by  Mv.  Popi)le,I  have  considered  of  an  act  passed 
at  Barbadoes,  intitk  I  "  an  act  to  dock  the  entail  limited 
on  a  certain  pbuitatiou   situnte  in    the   parishes   of  St. 
IVters  and  St.  Andrews,  in  this  island,  and   to  enable 
Geor-e  Nicholas  Es,i.,  and  Susannah  his  wife,  to  mortgage 
or  >ell  the  >.vno.  willi  the  negroes   thereto  belonging-'" 
and  [  do  humbly  cevtily  your  Lordships,  that  1  havc^'no 
objection  against  the  said  act  being  confirmed  by  his 
Majesty,   the  intent  of  the  said  aet  being  only  to  bar  an 
entail  for  the  sati.- faction  of  laurha-ers,  which  T  am  of 
opinion  might  have  been  done  without  the  said  act. 
,//////  27//^  1717.  Ewn.  Northey. 

{\^.)  Thr  opinion   of  the   Solicitor  General,    J.  Jf. 
^[htihl.  on  till'  \innr  .sii/ijert. 

To  the  Kight  Hon.  the  Lords  Commissioners  of  Trade 
and  Plantations. 

May  it  please  your  Lordships  ; 
In  ol)cdicu(e  to  yoi.i-  Lordships'  commands,  signified 
tome  by  letter  from  Mr.  ]»opple.  transmitting  to  me  an 
act  pa>~  cd  in  IJarbadoes  the  thirty-first  of  Mav,  171G 
intitU'd  '■  an  act  to  dork  the  entail  limited  on  a  certain 
plantation  ^ituate  in  the  pari>h  of  St.  Michael,  and  to 
iMiable  Thoni.c.  Sonicrs  Ivcj.,  to  sell  the  sime,  with  the 
negro  slaves  thereunto  Ixdong-'ig,"  and  recpiiring  my 
opinion  thereon,  in  point  of  law  :  1  Inive  considered  (if 
the  said  act.  .and  am  hnuil>!\  of  opinion,  that  the  said 
Thomas  Soincrs  being  st-i.^edof  an  estate  tail,  in  the  said 
lilani.ifion  and  r'.'groes,  with  the  irversion  in  fceexi)ect- 
uut  thereon,  to  himself,  the  [>as.sing  of  an  net   to  dock 


I 

IN 


:   hi] 


:  ki 


£CII,  ,  ill 


488 


OPINIONS  OF  EMINENT  LAWYERS- 


tliat  oiitail,  :iii(l  to  \  t-st  tlio  estate  in  Coc  simple.  U 


v^y 


his  dehts,  and  to  make  [jrovisiim  lor  his  liimilv,  is  just 
and  reusonahie,  and  no  more  than  what  is  done  constant- 
ly in  Kniiland.  I)\  line  and  recovery  ;  and  ac;s  of  the  like 
nature  have  been  often  passed  in  Barhad 


oes. 


KV//  (htohrr.  \-\{\ 


.1.  K.  A 


LAND. 


wr  itjiiniin 


I  of  t'li.     ^\tfo 


I'll'  11  (I  IK 


I 


<     (IIH 


/  Tiill.oi.  Viiit 


no 


li  r'ii(/. 


erul-i    Yorl, 

snjfi'ix-(/.  [/.'-  h'li'^hnu/^,  of  litiiilx  I. 

can  opintli  (jf- rtiKiUi/.  iml/sstln  ■'«nn<  husli 


<'i<ilor  < hn- 
or  iiioi'cnj 


III  1 1^  III 


fir'  I  Ji  III  till 


101161, 


xCii  ■■sodjitlioi 


tin 


IZ  <l  hlf  ((cIa  of  iI 


'^■\<  III 


Wi/  ill  (Ik  cull 


onir-s'. 


We  are  of  opinion,  that  no  line  levied,  or  recovery  .suf- 
fered, here,  of  lands  lyini;-  in  any  of  the  ])lantations.  can 
tail  oi'suidi  lands,  nn!.>ss  the  particidar  laws  or 


i)i\r 


tl 


le  en 


acts  of  asscMilily  of  the  plantation  where  the  lands  li 


have  iii'oviiled  that  fines  or  re 


coverie.' 


levied  or  suffered 


in  Enifland,  ol'  lands  there,  shall  have  that  ellect  ;  and 
in  that  ca^se,  the  [\)vrr  of  such  lines  oi-  rcoveries,  de- 
pends u|)on  su(di    particular  laws  or  acts   of  a--cml)lie«, 


and  nnist 


tic   1 


I'Uidatcd  li\  them. 


[■)i/i  l>u .  i7;;o. 


P.  y 

C.T 


OUKE. 

VI. nor. 


(10.)  ?//'■  o:uiiio'.\  of  tl,"  .llfonK-ii  (fi'iK  raf  Xorfh 


'Kih  on 


the  riijhf  of  iipp, ul  I'min  tin  toJonioJ  rnurt^ 


Bv  order  of  the  l.nrds  C 


oininissujiierr 


iMde  and 


Plantations.  I  scud  _\ou  the  luicdosed  extract 
Iroin  .Mr.  Lowthcr.  (Jo\-crnor  of  Harhadoe 


a  It 


ttor 


uitiin  consul 


enUion  whereof,  their 


M 
iOrdships  desire  \(iur  opinion,  as 


wuni  as  uia\  oc.  u 


pou  this  foUowini^  (j 


ll't  )'i  .  vi/. 


(^icxrc.  WLclher  uu  appeal  can,  or  ought  to  be  brought, 


OF  THE  COLONIAL    CONSTITUTIONS.  489 

from   the    Court   of  Exchequer    in  Barbadoes,    to  the 
governor  and  council  there,  us  a  court  of  chancery. 
July  \^th,  1713.  Wm.  Popple. 

I  am  of  opinion  the  Governor,  by  virtue  of  his  instruc- 
tions, is  to  admit  appeals  as  well  from  the  court  of  e-- 
chequer  as  from  other  courts  in  the  island  of  Barbadoen 
to  the  governor  and  council  there,  and  this  plainly  was 
the  intent  of  the  governor's  instructions,  no  appeal  being 
directed  to  be  allowed  from  any  court  to  her  Majesty, 
but  from  the  court  of  cliancery,  which  would  have  been 
provided  for,  to  have  been  from  the  court  of  exchequer 
to  her  Majesty,  if  an  appeal  had  not  been  intended  to  be 
first  in  the  chancery. 

IC/A  Fehrnary,  1713.  Edw.  Northev. 

(IT)  Vie  opinion  of  tlie  smie  Imcyer,  on  the  same 
topics. 

To  the  Right  Hon.  the  Lords  Commissioners  for  Trade 
and  Plantai     is. 

My  Lords; 

In  obediejice  of  your  Lordships'  commands,  signified 
to  me  by  Mr.  Popple,  I  have  considered  of  the  petition 
of  William  Cockburn  Esq.,  wnereby  he  represents  to 
your  Lordships  that  he,  being  appointed  by  the  the 
Lord  Archibald  Ilamiltim,  late  Governor  of  Jamiiica,  to 
exercise  the  ofhce  of  secretary  and  clerk  of  the  enrol- 
ment there  (Mr.  Pnge,  who  was  the  deputy  of  Mr.  Con- 
greve,  who  had  those  offices  by  i)atent,  voluntarily  ab- 
senting him.self  from  that  island)  did  execute  the  same 
from  the  iUh  of  March,  till  the  Gth  of  Aug...  ,  1716, 
when  bo  was  removed  by  Mr.  Haywood,  the  succeeding 

Governor  of  the  said  plantation.     And  thereupon  a  bill 
63 


i/i 


a-yrtTf 


ft 


490 


OPINIONS  OF  EMINENT  LAWYERS. 


was  broudit  against  the  petitioner  by  Mr.  Bcokford,  who 
was  appointed  l>y  the  said  Mr.  Congreve  to  be  his  de- 
-  puty,  upon  the  death  or  absence  of  the  said  Mr.  P-ge, 
and  a  decree  was  given  against  him  in  Jamaica  fir  more 
money,  as  the  profits  of  the  said  ofRce,  tlian  he  received 
during  the  time  that  he  executed  the  .same,  without 
making  any  allowance  to  him  for  the  execution  of  the 
said  offices  ;  against  which  decree  the  Governor  cannot, 
by  his  instructions,  allow  an  appeal,  the  demand  being 
under  the  value  of  five  hundred  pounds  sterling  ■  humbly 
praying  that  his  Majesty  would  beplea.-ed,  for  the  relief 
of  the  petioner,  to  give  directions  fur  re-hearing  of  his 
cause,  and  the  doing  therein  what  to  justice  shall  ap- 
pertain. 

And  I  do  most  humbly  certify  your  Lordships,  that 
the  petition  is  unadvisedly  framed,  for  that  his  Majesty 
cannot,  by  law,  give  a  directi'ii  to  any  court  to  re- 
hear any  cau.se  depending  thereni,  l)ut  rehcarings  are 
granted,  or  denied,  I)y  courts  of  equity,  on  petition  of 
the  parties  grieved,  to  such  court  as  shall  be  judged 
proper. 

And  as  to  the  instructions  given  to  the  Governor  men- 
tioned in  the  petition,   wherel)y  he  is -^strained  from 
allowing  an  appeal  in  any  case  under  the  value  of  JCoOO 
sterling,    that  does   restrain   the   Govcrner   only   from 
granting  of  appeals  under  that  value,   notwithstinding 
which,  it  is  in  his  Majesty's  pi^wer,  upon  a  petition,  to 
allow  an  a.ipeal  in  cases  of  any   value  wliere   he   .^hall 
think  fit,  and  such  appeals  have  been  often  allowed  by 
his  Majesty  ;    but  I  think   the   reference   to  your  Lord- 
ships in  that  matter  is  improper,  for  ])etilions  for  a])peal    • 
from  decrees  given  in  the  plantations,  have  bee-,  always 
refered  to  a  committee  of  the  council  for  hearing  the 


u 

f? 


OF  THE  COLONIAL  CONSTITDTIONS, 


491 


causes  of  the  plantations,  and  on  their  report  that  it  is 
proper  to  allow  the  appeal  prayed  4br,  his  Majesty  in 
council  has  usually  allowed  the  same,  and  not  in  any 
other  manner.  I  have  perused  the  decree,  and  think 
the  petitioner  has  great  hardshi[  therein;  and  that  upon 
a  prope-  application  he  may  obt  in  an  appeal  in  that 
cause. 

Dec.  im,  17T7.  Edw.  Northey. 

(18.)  2he  opinion  of  the  Attoniey  and  Solicitor,  Ryder 
and  Murray,  on  the  commission  granted  to  De  Lancy, 
the  Chief  Justice  of  JSfeio  York. 

We  think  the  Governor  should  not  have  granted  this 
connnission  different  from  the  usage  ;  )jut  as  the  powei 
given  by  the  commission  is  general,  we  apprehend  the 
grant  is  good  in  point  of  law,  and  cannot  be  revoked 
without  misbehaviour. 

2oth  Jidy,  1753.  D.  Hyder. 

W.  Murray. 

(19.)  2hc  opinion  of  the  Attorney  General,  Yorke,  in 
1728,  on  the  Kinfs  right  to  order  a  nolle  prosequi  lo  he 
entered  on  prosecutions,  in  Jamaica,  for  the  penalty  of 
an  act  of  Assemhly. 

To  the  Right  lion,  the  Lords  Tommissioners  of  Trade 
and  Plantations. 

May  it  please  your  Lordships; 
Li  obedience  to  your  lA)ra>hips'  commands,  fignifiod 
to  me  by  letter  Wnn  Mr.  I'diipk-.  dated  the  (ith  of  August 
instant,  referriii'j;  to  me  the  inclosed  papers,  (the  titles 
wiioroof  are  contained  in  a  soheihiif  hereunto  annexed), 
relating  to  an  information  exhibited  by  hia  Majedty'a 


I 


,   It 


492 


OPINIONS  OF  EMINENT  LAW  VERS. 


Attorney  General  of  Jamaica  against  Mr.  Donovan, 
agent  for  the  contractors  for  victualling  the  squadron  in 
the  West  Indies,  for  the  duties  of  a  quantity  of  rum, 
brought  from  Barbadoes,  ai.d  delivered  on  board  one  of 
his  Majesty's  ships  at  Port  Royal  for  the  use  of  said 
squadron  ;  and  desiring  my  opinion,  whether  his  Ma- 
jesty may  lawfully  grant  Mr.  r»onovan  a  nolle  jmmqui, 
as  the  law  stands  upon  which  the  information  against 
him  was  hied. 

I  have  considered  the  said  papers,  and  another  paper 

laid  before   me  by   Mr.  Sharpe,   agent  for  the  said  Mr. 

Donovan,  and  affirmed  by  him  to  be  a  true  copy  of  the 

said  information,  and  also  an  act  of  as.sembly,  passed  iu 

Jamaica  on  the  13th  of  November,   1724,  intitled  "  an 

act  for  granting  an  additional  revenue   to  his  Majesty, 

his  heirs,  and  successors,  for  the  better  support  of  the 

government  of  this  island,"  which  is  the  law  whereupon 

the  said  information  is  founded  ;    and  several  clauses  of 

the  said  a-t,  having  reference  to  the  revenue  act,  passed 

in  the  said  island   in  the  year   17 --3,  now  expired.     I 

have  likewise  considered  that  revenue  act,  and  beg  leave 

in  the  first  place,  to  inform  your  Lordships  that  no  proof 

has  been  laid  before  me  of  the  facts  contained   in  the 

said  papers;    and,  therefore,  the  opaiion  1  shall  ofier  to 

your  Lordships  proceeds  only  from  a  supposition  that 

those  facts  are  re[)resented  iu  a  true  liyht. 

LTpon  this  foundation,  I  conceive,  that  the  prosecution 
against  Mr.  Donovan,  being  for  the  duty  charged  by  the 
act  of  assembly  of  1724,  upon  rum,  and  not  Ibr  any  pen- 
alty therel)y  indicted,  none  of  the  clauses,  in.serted  in 
either  of  the  said  acts,  for  excluding  the  p(,\ver  of  the 
crown  t<.  grant  nolle  prosequi  in  the  cases  of  penalties, 
do  extend  to  this  caae;    cud,  although  the  said  duty  is 


OP  THE  COLONIAL  CONSTITUTIONS.  493 

appropriated  towards  the  .support  of  the  .trovniiiient  of 
the  said  ishmd,  yet  I  apprehend  his  Majesty  iupv  pro- 
perly judge,  upon  circum.stanc3s  hiid  beiore  hini,  how 
far  it  is  reasonable   to  permit  his  officer  to  carry  on  a 
prosecution  in  his  Majesty's  nnme,  for  the  lecovcx-y  of 
the  said  duty  in  a  particular  instance  :  wherefore,  I  am 
of  opini(>n,  that  as  the  circumstances  of  this  case  are  re- 
preserted  in  the  inclosed  papers,  his  Majesiy    ,ny  lawful- 
ly order  his  attorney-general  for  the  island  of  Jamacia, 
to  stay  proceedings  upon  the  said  information,  and  to' 
enter  a  nolle  prosequi  to         same,  if  such  shall  be  hib 
royal  pleasure. 

Avg.  30,  1728.  p.  Yorke. 

(20.)  Mr.  Fanus  opinion  on  an  act  of  the  Ncfj  York 
Assembly,  for  pre  renting  prosecutims  hj  information,  as 
tnc'jusistent  nilh  the  Kings  prerogative. 

To  the  Right  Hon.  the  Lords  Commissioners  for  Trade 
and  Plantations. 

My  Lords ; 

111  obedience  to  your  Lordships'  commands,  signified 
to  mr  by  Mr.  Popple's  letter  of  the  iirst  of  May  last,  I 
have  perused  and  considered  an  act  passed  at  New  York, 
in  the  year  1727,  intitled  ^-an  act  for  preventing  pro.se- 
cution  by  informations."  The  act  recites,  that  many  of 
his  Majesty's  sulyects  have  been  lately  prosecuted  in 
the  respective  counties,  and  in  th  supreme  court  of  this 
coljiiy,  upon  iU'ormation  filed  against  them  by  the  at- 
torney-general and  his  deputies;  ihough  the  matters 
charged  against  tl.em  have  been  generally  trivial  and 
incon.Hderable:  therefore,  it  is  enacted  that  all  informa- 
tions filed  by  his  Majesty's  attorney -general  of  this  col- 


im 


i 


H 


,  i 


■\ 


'fh-'it 


11 


,   !.i 


( 


' 


494 


OPINIONS    OF    EMINENT    LAWYERS. 


ony,  now  (lopen(liii<?  in  the  respective  courts  of  this  col- 
ony, shall  he  (lUiished;  iviil  the  respective  judtfes,  and 
justices  of  the  several  couits  in  this  eolouy,  where  such 
informations  are  filed,  shall  not  allow  or  admit  any  pro- 
cess or  proceedings  whatsoever  thereon,  after  the  publi- 
cati(m  of  this  act;  and  all  such  process  and  proceedings, 
are  then  to  ceasi",  determine,  and  become  void,  and  he 
dismissed  the  said  court,  or  courts,  accordingly:  audit 
is  enacted,  that  from  and  after  the  publication  of  this 
act,  no  person  or  piTsc.ns  whatsoever,  shall  be  troubled, 
vexed,  or  disturbed  in  his,  or  their,  liberty  or  estate,  by 
the  Kings  attorney-general  for  the  time  being,  or  by  his 
deputy,  or  deputies,  or  any  other  person  or  jjcrsons  what- 
soevi  r,  upoii  pretence  of  any  misdemeanour  committed, 
otherwise  than  1)\- presentment  (»fa  grand  jury,  or  hy  in- 
formatirm  by  an  order  fiom  the  (lovernor  foi'  the  time 
being,  signed  in  council,  for  sueh  jirosecution;  and  the 
par*  ■,  or  parties,  so  presented,  shall  be  brought  to  trial 
the  second  couit  after  su(di  i  dormatiou  tiled,  or  be  dis- 
charged the  conrt  without  ])aying  ot'  any  i'vc:^,  any  law, 
usage,  or  custom  to  the  contrary  notwithstanding,  pro- 
vid"d  tli:it,  ol"  the  action^  already  con. nu'uced  upon  in- 
formations. a<  aforesaid,  -nch  of  them  may  bi'  broutrht 
on  again,  as  the  (loNcrnor  for  the  time  be'iii.^  I»v  an  ex- 
press order,  signed  in  council  w  itiiin  one  month  aft.-r  the 
publication  of  this  ;ict,  shall  order  and  direct;  provided 
also,  that,  as  well  the  |iro-eciition-:  to  be  made  on  such 
ortlers,  as  on  an\  othci  such  oi'dcr  or  ordeis.  to  be  signed 
in  manner  as  aforesaid.  h;ili  lie  triable  in  ilie  respective 
comities,  only,  wiiere  the  iii.itteis  ot'  fact  dil  .nise,  or  was 
committed.  And  it  is  further  enacted,  that  imv  person, 
or  p'Tsons.  pr  )-t'cnfe<l  liy  inform atio.i  and  iiroiii;bt  to 
trial,  the  sccoud  court,  us  alore.suid,  anil  uct^uitled  by  the 


OF  THE  COLONIAL  CONSTITUTIONg,        495 

verdict  of  twelve  men,  .shall  be  discharged  the  court, 
without  paying  any  fees,  excepting  to  such  pi  rson,  or 
persons,  as  he,  she,  or  they,  shall  employ  in  their  neces- 
sary defence.     It  is  further  enacted,  that,  if  the  attorney- 
general  for  the  time  heing,  his  .Uputv,  or  deputies    or 
any  other  person,  shall  prosecute  any  person,  or  persons, 
contrary  to  the  true  intent  and  meaning  of  this  act,  ex- 
cepting on  such  penal  statutes  as  include  the  plantations, 
or  where  it  is  otherwise  provided  for  hy  acts  of  the  gen' 
oral  assembly  of  this  colony,  ^hall  f.rfeit  .ClOO  current 
money  of  the  same  colony  for  every  such  oflence,  to  be 
recovered  by  action  of  debt  in  any  cou.-t  .,f  this  pro^  ince, 
the  one  half  to  the  person,  or  persons,  who  shall  prose- 
cute the  same  to  effect,  and  ihe  other  half  to  his  Majes- 
ty, his  heirs,  and  successors. 

I  think  this  act  a  very  violent,  and  extraordinary,  at- 
tack upon  the  prerogative  of  the  Crown;    for  the  right 
the  attorney-general  has  to  file  informations,  is  delega- 
ted to  him  from  the  King:  and  lias  h.vn  ever  th.)ught  u 
most  essential  and  necessary  power,  with  regard  to  the 
security  of  the  pid)lic  tran<|iidity.  as  well  as  for  the  ser- 
vice and  protection  ..f   his    Majestys  revenue;    and,    I 
apprehend,  the  <lestroying  that  p-.wer  in  the  mannn'  it 
is  attempted  by  this  act,  will  be  attended  with  very  ill 
oon.se.piences;    for  if  no  d,'liM.,iienl  is  t..  be  prose.-uted 
uitlK.ut  goiug  through  .so  s,,l,.,„„  „„  i,„,nj,.v  whether  it 
Ih-   .•vpedient<.rnot.    }  believe  it  will   beau   eucourage- 
II"  lit  to   wicked   men  (o  p.Mpetiale   (lie  u,.rst  .,f  villan- 
i(-,    in  hopes,   by  justi-v    being  delayed,    which  it  must 

••■^f^iirily  be  in  this   form  ol'  |  roceclinir.  t|,ev   may  e^- 

'•.■i|'*^  "'■■><  piMiislinient  they  jusiU  deserve;  and  wjiich, 
!!:  iio.icx  oiiLdit  t..  Ire  ii«  speedy  as  possibie.  Another 
rca.Koii   against   the    pa.ssiug   this  act,    nul    ulii.di    I  beg 


•'J 


il 


u 


496 


OPINIONS  OP  EMINENT  LAWYERS. 


leave  to  submit  to  your  Lordships'  consideration,  is,  that 
all  prosecutions  now  depending  are  by  this  act  entirely 
quashed  and  discharged.  What  consequence  this  may 
have  to  the  public  peace  in  the  colony,  I  cannot  tcU ,  out 
surely  many  inconveniences  will  arise  by  discharging 
tbf^se  nroseculioiis,  which  I  nuist  suppose  just,  and  not 
trivial  and  inconsiderable,  since  they  have  been  carried 
on  by  the  attorney-general,  against  whom  there  is  no 
comphiint;  which,  witli  su])niission,  supposing  there  was 
any  groinid  lor  the  accusation,  would  be  the  most  prop- 
er aud  decent  way  of  proceeding,  rather  than  to  attempt 
the  restraining  the  prerogative  of  the  Crown,  in  so  ma- 
terial a  part  of  it. 

The  imposing  a  fine  upon  the  attoiiiev-general,  if  he 
does  not  pursue  tlic  directions  of  tl'is  act,  is,  I  appre- 
hend m  uui>ri'cc(K  uted  step,  and  a  high  rellection  upon 
the  honour  ol  ttie  Crown  ;  for  c.ni  it  Ix'  supposed  his 
Majesty  will  appoint  an  attorney -general,  who  is  so  i  'i- 
willing  to  do  his  duty,  that  he  nuist,  by  the  fear  and 
dread  of  puuishnieut,  be  forced  to  put  those  laws  in  ex- 
ecution, wliich  he  ouirht  strictly  by  his  emi)lovment  to 
be  suppo>e(i.  not  only  to  observe  hiuisell",  but  to  see  a 
due  aud  strict  oli-er' ance  of  by  others?  For  tliese  rea- 
sons. 1  iun  luiuibly  of  opinion  tliis  act  ought  to  Ix;  re- 
pealed. 

./ii/i,    •">.    172^^.  I'han.    Kank. 

(21.)    7  ill  opinion  of  the  .\/f  mn  i/  anil  S  >!lcifir-(r(  nt'i- 
.  al,    Yor^''  nnil   In  l>'il.  on  f/r   iinf  auhj  if. 

To  ihf  Kiglit  linn,  t be  Coi-d<  Coir.Miis.ioiiers  for  Trade 
aud  riaiitatioiis. 

.M:!\    it  please  \  our  liord^hips; 

lu  ubcdicncc   to  your  Lordships  conimands,  ^igniticd 


OF  THE  COLONIAL  CONSTITUTIONS. 


497 


to  us  by  Mr.  Popple,  rclbrring  to  ii.s  ;ui  act  passed  at 
New  York  in  1727,  entitled,  "an  act  lor  preventing  pros- 
ecutions by  informations,'  and  directing  us  to  give  our 
opinion  in  point  of  law  thereupon  ;  we  have  considered 
the  said  act,  ami  also  the  memorial  of  his  Majesty's  at- 
torney-general of  New  York,  hereunto  annexed;  and  are 
of  opinion,  that  tiie  said  ac-t  is  a  high  encroachment  up- 
on his  Majesty's  midoiil)ted  i)rer()gativ(;  of  proceeding  by 
way  of  information,  and  of  dangerous  conse(pience,  and 
therefore  not  lit  to  be  approved. 
Avfjiist  13,  1728.  p.    YortKi-. 

C.     T.VLBOT. 

(22.)  77/c  opinion  of  tfi,  At!  ^riinj-Gcncral  Xoithny, 
concerning  the  prorecf/in'js  in  lite  coui-ts  of  i\^  ir  Ynil\  on 
an  e-sr/uif,  and  an  a/)p al  thrri'Jrom. 

As  to  these  proccH'dings  depeniling  on  tlie  writ  of  es- 
cheat, on  the  death  of  .b^-.';)b  ]?aker,  Vv-hicli  now  sf-iids 
on  a  donmrrer,  i -I'l  not  .ict.iniined  :  I  am  of  (pinion 
that  depends  on  his  will,  for  If  hi'  liii'h  siidicientlv  de- 
.soribed  the  devisees,  so  as  they  may  liv  Ixiiowii,  thev 
shall  take  thei'clu  ,  and  pr.'veiit  ihi-  escheat  of  ins  hoii>^es 
to  the  ('rown.  'Idu'  ideadln--  nf  Howard  In  the  .s<//r  fa- 
(•ian  is  certainlv  ill,  but  that  w'll  not  hint  tin-  devisees, 
when  they  conlciid  tin  ir  till,'.  If  the  judmiieid  that 
shall  ))e  given  be  not  li'  ■.!  .-ncr  .m  it  will  lie  before  tiie 
giiviTiior  and  eomndl;  and  lium  iiiin,  beliirc  her  Mnjesty 
ill  council. 

Jiih/ 'M),  17 in.  Enw.  NoirniEV. 

(2.'V)  7he  iijiinion  i>j  (//■■  Attnrney-tleneml  Xurthey^  on 
tlu  ( villi  iii'e  ofjrce  netjiw-. 

To  the  Right  lion.  lli.  I.oids  Coninns.sioners  of  Traile 
nnd  PInntalions. 


11 


498 


OPINIONS  OF  EMINENT  LAWYERS, 


May  it  pleaf<L'  your  Lordships  ; 
In  obedicnoe  to  your  Lordships'  commands,  signified 
to  mo  hy  Mr.  P(>ppU\  I  have  considered  of  the  enclosed 
act,  passed  at  .Jamaica  the  10th  day  of  November  last, 
entitled    ''an  act  to  prevent   iiejiroes   beint;  evidence,, 
against  Dorothy,  the  wife,  and  John.  Thomas,  and  Fran- 
cis sons  of  John  Williams,  a  free  negro,''  whereby,  re- 
citing a  former  act  of  the  like  nature,  made  in  favor  of 
the  said  John  Williams,   the  fatlier,  and  that  the  said 
John  Williams  had  educated  his  said  sons  in  the  protest- 
ant  religion,  a. .d  had  given  them  suitable  education,  and 
that  he  had  oljtained  Ity  his  lalxir  and  industry,  a  com-- 
peteiicy  for  his  said  wife  and  three  sons;  which,  with 
their  lives,  might  after  be  subject  to  the  evidence  of  ne- 
groes, and  other  inlidels.  it  was  enacted  that  no  negro, 
Indian,  or  mulatto,  should  thereafter  be  allowed,  or  re- 
ceived to  give  evidence  against  his  said  wife  and  child- 
ren, in  any  suit  or  suits  in  any  court  whatsoever,  or  be- 
fore any  magistrate  in  that  island,  Imt  that  thoy  should 
he   tried  by  a  jury  of  twelve  men,  ;is  otlii'r   subjects  of 
Great   Ihitain  are  tried  there  ;    and  1  do  mo.st  humldv 
certify  _\  our  Lordships,  that  by  the  aiuiexed  allidavit  of 
Francis  Oldlield,  it  docs  appear  that  the  said  John  Wil- 
I'ams,   bis  wife  and   children,  have  all  been  baptised  in 
the  christian  faith,  and  do  all  profess  the  protestant  re- 
ligion, and  that  by  reasiMi  nfthe  fidelity  and  integrity  of 
the  saiil  .bihu  Williams  the  fatlu-r,  he  obtained  liis  free- 
dom  several  years  ago.   and  hi.-  said  wile  and  childrcif 
areaNii  Iree  tVum  s|;. very,  aii'l  lliiit  tbc  re.ison  of  making 
tliis  law  is.  for  tli.il    b\   a  law  of  .laniaiea,  cntithMl    'an 
ni't  lor   the  bitter  order  and  gnverninent  of  slaves,"  the 
evi<lenee  of  one   slave  against   another,    that  is   or  lias 
been  a  slave,  is  admitted  to  be  good  and  sutlicient  proof; 


OF  THE  COLONIAL  CONSTITUTIONS. 


499 


and  such  slaves,  or  persons  that  have  been  slavos,  are  to 
be  tried  by  three  freeholders,  belore  two  justices  of  the 
peace,  and  such  slaves  are  not  admitted  to  be  evidence 
against  any  other:  and  I  have  no  objection  against  this 
law,  for  that  it  is  reasonable  that  a  slave  converted  to 
the  christian  religion,  being  made  free,  should  be  adniit- 
ted  to  the  same  privileges  with  other  free  men,  and,  that, 
therefore,  this  law  is  proper  to  be.  approved  by  his 
M    esty. 

April  IC,  1717.  Edw.  Northey. 

^^{P^^^J- — Of  the  Admiralty  Jurisdiction. 

(1.)   Tlie  ophthn  of  the  Atforney-Gcneral  Nnrthcy  in 
1702,  (;//  the  Admiralty  Jurisdiction,  in  the  Colonics. 

The  board  of  trade,  doubtful  of  the  true  jurisdiction  of 
the  admiralty,  on  the  llth  of  July,  1702,  sent  qnmiia 
to  the  attorney  and  advocate-general  for  their  opinions; 
whether  tlie  courts  of  admiraUy  in  the  plantations,  by 
virtue  of  the  7tli  and  8th  of  King  William,  or  any  other 
act,  have  tliere  any  further  jurisdiction  than  is  exercised 
in  England?  If  the  courts  of  adnn'ralty  in  the  plant- 
ations can  take  cognizance  of  (piostions  which  arise  con- 
corning  the  importation  or  exportation  of  any  goods  to 
or  tVom  them,  or  of  Irauds  in  lUii  -rs  of  triidc  /  And  in 
case  a  vessel  sail  up  any  i  iver  *  \  prohibited  goods,  in- 
tended for  the  use  ot  the  inhiil  .i  whether  th<-  in- 
l()niier  ma\  choose  in  what  court  In-  will  nrosceute,  in 
the  courts  o''  admiralty  ur  of  common   law?     Vrop.  p. 

Sir  John  Cooke,  the  advocatc-ireneral,  jileaded  for  the 
jurisdiction  (>r  llie  ailniiralty,  \\ith  tliat  aii\ie(\  uhicli 
the  civilians  iia\e  always  shewn  for  the  extension  of 
their  favorite   iuiisdirtuin. 


i    { 


f^^F.: 


\ 


it, 


m 


.  t.i 


500 


OPIM  ;X.S    OF    3MINENT    LAWYERS. 


As  to  the  qwrics  relating  to  the  admiralty  courts  in 
the  plantations,  sent  to  the  advooate-sreneral  and  myself 
1)}  Mr.  I'opple.  ]Mirsuant  to  your  Lordship.":'  commands, 
I  have  considered  ol'  the  same;  and  as  to  the  juri.sdic- 
tion  of  the  adiuiralty  courts  in  Eni(land  and  the  platan- 
tions,  touchiiii^  olienccs  committed  against  the  laws  made 
relating;  to  the  plantations.  Avhich  are  enumerated  in  the 
hegiiniin^i- ofthe  act  made  in  the  7lh  and  Sth  of  the  late 
King  William,  mcnlioned  in  the  (/uui  iei^,  I  am  of  opin- 
ion. tl"it  foi-  olVcnccs  af.':ainst  the  act  oC  the  12th  Car.  II. 
oh.  1^.  lor  eucoiuagiug  ac.d  increasing  of  shipping  and 
navigation,  liy  that  act.  the  admiralty  courts  in  the  col- 
onics have  no  jiirixliction;  and  the  admiralty  court  in 
England,  hath  ju\i^^dictiou  oidy  where  a  ship  is  taken  at 
sea  l<)r  otfcnding  a'r.iin-t  tliat  ar-t.  in  whitdi  case  the  ship 
is  to  ])e  condenuied  in  tlic  adniiralt\-  as  a  prize. 

As  for  (.llenres  against  the  >t;»tute  of  the  loth  Cur.  II. 
eh.  7.  for  (lie  cniMunigcmcnt  of  trade,  hy  that  act  no 
court  of  admiralty,  (itlicr  in  ICngland  or  the  plantations, 
liave  any  iuris(!i(iion,  the  >^uits  hcing  to  he  in  such  courts, 
wherein  no  e^soi«:n.  protection,  or  waircr  of  law  shall  be 
allowed,  wiiicli,  hy  construction,  are  only  the  courts  of 
law.  wliere  only  essoigns,  protection,  or  wager  of  law 
can  he  allowed. 

The  jirocceding.^  fi)r  oii'-n;'c<  a'j-.iinst  th/  statute  '1'1-r, 
of  Car.  11.  ell.  I'd.  for  regnlatiim-  tlic  iilantalion  trade,  by 
til  It  act  may  he  in  llir  ,iilinir;dly  couit  in  Kngland,  but 
not  in  the  adrnirrl'N  courts  in  tin'  plantations. 

The  -tatutc  Ttli  Williaui  doth  not  i:ive  anv  jurisdic- 
tion to  the  admii'alty  oiut  in  !•]  igland.  for  anv  olTenco 
in  unlawful  tradinj;  to  or  from  the  p'aatatioiis.  hut  suits 
on  this  net  in  England  nni~t  he  in  the  (>uccn's  coiirt.'^  of 
rccoril  at  Westminster;  hut  procccdini:;s  ma\- he  in  thoad- 


OF  THE  COLONIAL  CONSTITUTIONS. 


501 


miralty  or  other  courts  in  the  plantations,  at  the  election 
of  the  informer,  for  importiTig  or  exporting  to  or  from  the 
plantations,  in  any  ship  but  such  as  are  de.scri])od  l)y  that 
act,  and  manned  as  that  .  ;t  directs  which  is,  that  the 
forfeiture  may  be  sued  for,  in  any  court  in  the  planta- 
tions generally,  which  include  •  he  court  of  admiralty  ; 
and  the  rather,  because  the  act  expre.'^sjy  takes  notice  of 
the  court  of  admiralty,  as  a  fixed  court  in  the  planta- 
tions for  other  purposes ;  and  I  am  of  opinion  as  to  the 
clause,  fol.  502,  that  it  doth  not  concern  trading  in  un- 
qualified ships,  that  being  provided  for  by  the  former 
clause,  but  refer  to  the  clause  immediately  preceding  it, 
fol.  500,  which  enacts,  that  all  ships  coming  into,  or  go- 
ing out  of,  any  of  the  plantations,  and  lading  dv  unlading 
goods,  and  also  their  masters  and  ladings,  .shall  be  sub- 
ject to  the  same  entries,  visitations,  seiirchcs.  penalties, 
and  forfeitures,  as  to  the  entering,  h.ding,  or  dischargin"' 
their  respective  ships  and  ladings,  as  ships  and  their  la- 
dings, and  the  commanders  of  such  .ships,  are  subject 
and  liable  to.  in  this  kingdom,  by  virtue  of  an  act  of  par- 
liament made  in  th(>  Mth  of  Car.  11.;  and  also  sul)ject 
to  such  other  powers  and  authorities  of  the  otlicers,  for 
coUeeting  and  managing  his  Majesty's  revenue,  and  in- 
specting the  I'lantation  trade,  and  lialile  to  such  ])ains 
and  iienalties,  tMucJiiiiL'  tiie  importing  and  exjinrtiuir 
goods  int(\   and  out   of  the  plantations,  as,  b\-  the  same 


last  recited  act.  aif  provi(h'd  an 


(I    H! 


<'fed,  toiicliint:'  pri 


hibited  goods  in  this  kingdom,  Uy  which  claii^i-  1  am 
of  ojiinion,  that  tliat  act  gives  tlie  admiralty  court  in 
the  ]dantati()ns  jurisdiction  of  ail  penalties  ami  lorfeit- 
Ufcs  for  unlawful  tiailing,  eilher  in  derratiding  the  Kini;; 
in  his  cii>toms,  or  impni-ting  into,  or  exputiug  out  of, 
the  plaiitations,  prohibited   goods,  and  oT  all   iVauds  in 


i  rt 


!.!■ 


^iif'l 


fe-f 

,   ;  r 


502 


OPINIONS  OF  EMINENT  LAWYERS. 


i-    i 


matters  of  trade,  and  offences  against  the  acts  of  trade, 
comTiutted  in  tlie  plantations ;  and  that  in  all  the  cases 
before-mentioned,  except  the  trading  in  nnqualified  ships, 
not  manned  as  directed  by  the  act  of  the  7th  William, 
suit  can  be  only  in  the  admiralty  in  the  plantations ;  and 
for  the  excepted  offences,  suit  may  be  in  any  court  in 
the  plantations,  at  the  election  of  the  informer. 

Part  of  this  r/nnre  Avill  have  a  judicial  determination 
in  a  case  now  depending  in  the  Queen's  bench,  in  an 

action  of  trover  and  conversion  brouglt  by . 

against  Colonel  Quarry,  the  judge  of  the  admiralty  in 
Pejuis\  Ivania,  who  as  such  in  that  court,  condemned  an 
luncgistereJ  ship  foi  trading  there,  which  Avill  acquit 
hi  in  in  that  action,  if  the  prosecution  may  be  in  the  ad- 
miralty court;  but  if  that  court  hath  not  jurisdiction  of 
the  cause,  the  proceedings  are  coram  jwnjudur,  and  the 
plaintiff  will  recover  against  hiui  as  a  wrong  doer. 

AN</iist  '2\,   1702.  Edw.  Northey. 

(2.)   7/h  opinion  of  the  .^ame  Inwycr,  on  a  ftiniUar  sub- 
Jcrt,  in  17<i;). 

To  the  Right  lion,  the  Lords  Commissioners  for  Trade 
and  Plantations. 

May  it  ])lcase  your  Lonlship'*; 

In  nlicdicucc  <()  your  Li);ii.-iiip>'  (jidi'i-  of  reference 
signifu'd  to  nio  by  Mr.  I'oitpic,  1  iiave  considered  of  the 
following  acts,  passed  at  ihe  geiu'ral  assi'nil)ly  of  Barba- 
does,  in  .\ugust,  September,  October  and  Novendier, 
1701!,  vi/;  -an  act  to  raise  a  levy  I'or  repairing  the  fbr- 
tilications  and  lireast-works,"  dated  the  L'litii  of  .Vugust, 
]7"1.*;  iui  act  I'or  titling  out  of  ships  or  vessels  of  war," 
dated  the  27tli  of  August,  1702;  "  an  act  that  all  per.sons. 


F»1 


OP  THE  COLONIAL  CONSTITUTIONS. 


503 


both  civil  and  military,  in  office,  authority,  and  govern- 
ment, at  the  demise  of  the  late  King,  shall  continue  un- 
til further  order  and  settlement  by  a  Governor,  or  her 
Majesty's  pleasure  be  further  known,"  dated  the  27th  of 
August,  1702;    "an  act  for  remittance  of  the  duty  of 
prize  liquors,"  dated  the  27th  of  August,  1702:  "an  act 
for  purcl.asing  a  '       el  of  war,  and  fitting  her  out,  and 
maintenance  of  prisoners,"  dated  the  10th  of  September, 
1702;  "a  supplemental  act,  to  an  act,  entitled  an  act  for 
purchasing  a  vessel  of  war,  and  fitting  her  out,  and  main- 
tenance of  prisoners  ;"  as  also,  "  a  supplemental  act,  to 
an  act,  entitled  an  act  for  the  fitting  out  of  ships  or  ves- 
sels of  war,"  dated  the  14th  of  October,  1702;  '■  nn  act 
for  laying  an  imposition  on  wines,  and  other  strong  li- 
quors, imported  into  this  island,"  dated  the  3d  of  No- 
vember, 1702:  which  laws,  I  conceive,  are  agreeable  to 
law,  and  do  not  contain  any  thing  prejudicial  to  her  Maj-^ 
esty's  royal  prerogative,  except  the  act  for  fitting  out 
ships  or  vessels  of  Avar,  which  gives  the  whole  prize  to 
privateers,  as  well  such  as  should  be  set  out  by  private 
persons  there,  as'at  the  charge  of  the  island,  the  perqui- 
sites of  the  admiralty  not  being  saved;    whereloie,  I 
cannot  think  it  fit  to  be  approved,  unless  a  law  be  first 
passed  in  that  island  to  restrain  the  benefits  therebv  al- 
lowed to  the  captors  to  such  privateers  as  shall  be  lilted 
out  })y  the  island,  and  for  reserving  the  perquisites  of  the 
lord  high  admiral. 

And  as  to  the  act^  that  all  per.-^ons,  both  civil  nnd  mil- 
itary, in  office,  authority,  and  gov(>rnment,  at  the  demise 
of  the  late  King,  shall  continue,  &c,  it  is  unnecessary, 
provision  being  made  for  continuing  of  ollicers  in  the 
plantations  on  the  demi.^^e  of  any  King  or  Queen  of  this 
realm,  by  a  statute  made  in  the  lir.st  year  of  lu-r  Majes- 


m 


^>n 


!  ; 


M=    ,i 


504 


OPINIONS   OF  EMINENT  LAWYERS. 


':il 


11  I 
il  •* 


4m. 


y,^   .  -f   Trfr-^fjw  5 


ty's  reign,  entitled  "an  act  for  explaining  a  clause  in  ail 
act  made  at  the  parliament  begun  and  holden  at  V/est- 
minster,  the  22d  of  November,  in  the  7th  year  of  the 
reign  of  our  sovereign  lord  King  William  III.  entitled 
"  an  r.ct  for  thv-  better  security  of  his  Majesty's  royal 
person  and  government." 

And  as  to  the  act  for  remittance  of  the  duty  of  prize 
liquors,  if  that  encouragement  be  thought  fit  to  be  given 
to  privateers  in  Barl)adoes,  which  is  not  allowed  them 
here  in  England,  this  law  being  perpetual,  I  am  of  opin- 
io is  fit  to  be  continued  only  for  a  time,  for  her  Majes- 
ty s  further  consideration. 

Ocfoh'^r  22,  11Q3.  Ewd.  Northev.' 

(3.)  T/'ie  opinion  of  the  Aflvo'^atc-Gcncral,  Sir  John 
Cook' ,  on  the  same  jfirisdktion. 

Ships  trading  contr.try  to  the  act  of  navigation  (12 
Car.  II.  c.  18.)  •  ic  to  be  prosecuted,  and  the  penalties 
arising  thereon,  to  be  recovered  in  any  court  of  record  : 
the  words  of  the  act  are  general,  without  a  particular 
mention  of  Enulanil,  or  of  the  plantations,  and  include 
the  admiralty  courts  of  l)()th  places,  they  being  the 
King's  courts,  and  consequently  courts  of  record. 

Ships  trading  contrary  to  the  act  for  encouragement 
of  trade  (!•")  Car.  II.  c.  7.)  are  to  be  prosecuted,  and  the 
penalties  aiising  thereon,  to  bo  recovered  in  any  of  his 
Mnjesty's  courts  in  the  plantations,  or  in  any  court  of 
record  in  England,  and  it  is  certain  that  the  admiralty 
court  is  the  King's  court,  and  was  so  allowed  to  he  by 
all  the  judges  under  their  hands,  annf)  1632.  In  the 
eleventh  paragraph  of  the  statute,  for  preventing  plant- 
ing tobacco  in  Kngland,  and  for  regulating  the  plantation 
trade  (22  and  23  Car.  II.  c.  2G.)  it  is  said,  that  upon  un- 


OF   THE  COLONIAL  CONSTITUTIONS. 


505 


lawful  importations  to,  or  exportations  from  the  planta- 
tions, one   moiet)'  of  the  several  ships,  and  of  their  la- 
dings, shall  go  to  the  King,  the  other  to  him  who  shall 
seize  and  sue  for  the  same,  in  any  of  the  said  plantations, 
in  the  court  of  the  high  admiral  of  England,  or  of  any  of 
his  vice  ad.nirals,  or  in  an_\'  court  of  record  in  England, 
by  which  tl„  jurisdiction  of  the  hi^di  court  of  admiralty, 
in  England,  is  plainly  foundec;      f„s  is  likewise  that  of 
the  admiralty  courts  in  the  plantations,  which,  in  respect 
to  the  admiralty  of  England,  are  vice-admiralty  courts^ 
and  it  is  observable,  that  both  +he  admiralty  courts  are 
mentioned  before  the  connnon  law  courts,  as  being  prin- 
cipally intended  by  the  makers  of  that  statute  for  such 
proceedings,  and  it  is  further  evident  by  the  same  clause, 
and  the  two  which  follow  in  that  statute,  that  the  admi- 
ralty jurisdiction  is  not  so  confined,  but  that  it  may  hold 
cognizance  of,  and  determine  the  olfences,  though  the 
goods  are  valued,  and  seised,  on  land. 

The  three  statutes  above-mentioned,  viz :  the  12th, 
15th,  22d  and  23d  of  King  Charles  II.  are  recited  in  the 
preamble  of  the  last  act,  relatinirto  the  plantation  trade 
(7th  and  8th  William  ill.),  and  that  last  act  does  suffi- 
ciently establish  the  admiralty  jurisdiction,  in  oftencea 
against  the  acts  of  trade,  in  as  ample  a  manner,  and  in 
tlie  same  words,  as  it  doth  the  jurisdiction  of  the  courts 
at  Westminster-hall;  and  if  it  be  objected  that  in  those 
two  places,  it  is  only' said  that  the  proceedings  for  the 
penalties  and  forfeitures  arising  from  tlie  oll'ences,  and 
not  for  the  offences  themselves,  shall  be  had  in  the  courts 
of  admiralty  it  may  be  answered,  that  the  courts  of 
Westminster  have  no  more  or  other  jurisdictions,  for 
they  are  mentioned  in  the  same  manner  as  the  admiral- 
ty courts,  and  not  otherwise  :  however,  the  offence  and 
(Jo 


-ij. 


506 


OPINIONS  OF  EMINENT  LAWVcRS. 


!l 


H 


« 


the  penalty  is  all  one  cause,  and  of  the  same  cognizance, 
and  are  determined  all  at  once  ;  for  to  suppose  otherwise, 
were  to  make  one  court  put  in  execution  the  decree  and 
sentence  of  another,  which  were  absurd  and  impractica- 
ble. 

Against  the  jurisdiction  of  the  admiralty  courts  in  the 
plantations,  thus  deduced  and  asserted,  there  is  a  seem- 
ing objection,  from  a  clause  of  the  aforesaid  statute,  7th 
and  8th  Gid.  HI.  where  it  is  declared,  that  upon  all  suits 
brought  in  the  plantations,  on  offences  against  the  sev- 
eral acts,  relating  to  the  plantation  trade,  by  reason  of 
any  unlawlul  importations,  or  exportations,  there  shall 
not  be  any  jury  but  of  natives  of  England,  Ireland,  or 
the  plantations,  from  whence  it  may  f)e  argued,  because 
admiralty  courts  use  no  juries,  they  are  not  pro^x^r  courts 
to  try  such  mutters  in. 

To  whioh  objection  it  may,  amongst  other  things,  be 
answered,  that  this  clause  does  not  in  the  least  take 
away  the  jurisdiction,  Avhich  not  only  the  same  act,  but 
several  former  acts  of  trade,  li.ive  given  to  the  admiral- 
ty courts  in  the  plantations,  in  i'a>es  of  unlawful  impoi- 
tations  and  exportaticms  ;  for  the  directing  the  nature 
and  manner  of  proceeding  in  one  court,  when  two  have 
the  cognizance  of  the  same  matters,  can,  in  no  construc- 
tion, take  away  the  power  of  the  other;  but  from  that 
clause  this  c!)nclusion,  I  conceive,  may  be  truly  and  fair- 
ly drawn,  viz  :  that  none  of  the  common  law  courts  in 
the  plantations  should  proceed  in  such  cases,  but  where 
luoper  jurymen  may  be  had,  .so  that  natives  of  any  other 
places  but  England  and  Ireland  and  the  plantations,  or 
natives  even  of  those  places  who  are  any  way  interest- 
ed, or  who  are  on  any  other  account  not  legally  quali- 
fied, cannot  serve  on  juries,  and  consequently  no  such 


OP  THE  COLONIAL  CONSTITUTIONS. 


507 


trials  can  be  had  in  those  courts  in  the  plantations  where 
proper  jurymen  cannot  be  had;  and  in  such  cases  the 
admiralty  court,  as  it  is  always  a  proper  court,  will  be 
theu  the  only  court  to  proceed  in,  and  determine  breach- 
es of  the  acts  of  trade, 
Juli/  23,  1702.  J.  Cocke. 

(-1.)  JL .  Fanr's  opininn  on  the  Adiniralty  Jurisdic- 
tion, in  the  Jialtainas. 

To  tile  Ili<rht  Honorable  the  Lords  Commissioners  for 
Trade  and  Plantations. 

M}-  Lord^ ; 

In  obedience  to  your  Lordships'  commands,  siirni.ied 
to  me  by  Mr.  Popple's  letter  of  the  0th  of  this  instant, 
May,  wherein  you;  Lordships  are  pleased  to  desire  my 
opinion,  in  point  ot  law,  whether  the  riu-hts  of  admi>  ilty 
in  the  Bahama  Islands,  are  comprehended  within  the 
Lords  Proprietors'  surrender^  I  have  c(Misidered  of  the 
same,  and  am  huml)ly  of  opinion,  upon  perusal  of  the 
orii^nnal  charter  of  the  Bahama  Islands,  granted  l.y  King 
Clnvles  II.  that  there  are  no  words  in  that  charter  w  liich 
will  carry  a  grant  of  admiralty  jurisdiction,  '  • 

rights  and  penpiisites  thereunto  l)elongiiig,  to  s 

Proprietors;  and,  liieretbre,  the  Lords  Propr.eicis.  or 
any  lessee  under  them,  could  never  have  anv  leizal  title 
or  pretence  thereto,  under  the  charter. 

Ma>i  10,    I72'.t,  Fran.  Fane, 

(••)),  'J ],e  ^[/fini(>/-(niicrnl  Xor/'ui/'.s'  ohs-acatloU'S 
on  .soinr  (irt^  of  thd  Bavhadoii  A-s:<'in'>lij,  a-^  incansiUcnt 

infli  tin'  Adiiiii-tiltij  J :.  risd'ution. 

To  the  Uight  Honorable  the  Lordd  Commissioners  for 
Trade  and  Plantation.?. 


w 


It 


If  \ 


i 

I.    ^- 


iri 

:# 

■  a 


ill 


508 


OPINIONS  OF  EMINENT  ',AWVE"fl. 


'  M 


Miiy  it  please  your  Lordships  ; 
111   obedience  to  your  Loidship.-;'  order  of  reference, 
pisrnifiod  to  uie  hy  Mr.  Pop})[o,  I  Imvc  (Mmsidered  of  the 
f()ll(*\\  iiij:'  Mots.  passed  at  an  assemUiy  of  Jiarbadoes,  from 
the  17th  of  November,  ITOl.tofhr  K^th  of  iMareh.  1701- 
2,  viz:    -an  net    for  the  |)ayn)ent  oi   the;  sum  of  £2000 
.sterliuj--  ("   his  exeellency  Kalph  Lord   Grey,  baron  of 
Warke,  i^e.''  (hited    17tli  November,  1701-    -'an  act  to 
prevent    Ireemeii,    viiiie   servants,    ne;;roes,   ai  d  other 
slave-.   I  unninj;-  from  this  island  in  shallops,  boats,  and 
other  vessels."  dated  17th  November,  1701;  "anactf  r 
layinu'  an   imposition  on  wines  and  other  strong  li(puns 
imported  to  '.his   island,"  dated   17th   November,   1701; 
'•an  act    tor  the  ■•iieDurairement   of  white  servants,  and 
to  ascertain  th'  ir  allowance  oi   provisions  and  (dothes," 
d.ated   17th  Novemiier.    17<ll:    ■  an  act  for  the  collectins 
of  several  sums  of  mone\  and  arrears  (iue  to  the  public 
of  this  island,"  dated  17th  Novei!il)er,  I7<'1;    'an  act  to 
ratif\,  api)rn\c,  ami  eonlirm  letters  |)atent,  ^\  'ts,  grants, 
bar-min^.  sale-;,  ccnivvanees.  and  all   other  instruments 
of  writing  rel  itiim  to  the   tith-s  of  the    sevei-al   ov/ne  s 
and  jiroprietors  of  the  lands  and  tenements,  slaves,  and 
(  ther  hereditaments,  wihii;  this  island,"  dated  the  ISth 
NoNeiuber,    I7<'l;     -an  i.ct    to  encourage   privateers,  in 
case   >l  a  war,"  <lated   ISth  November,  I7IM  ;   •  aii  act  to 
"CN  ive  and  eontnni'-  an  act  to  secure  tlie  p  areuble  pos- 
session ol'  neirroes  and  oilier  siives  to  the  inhabitants  of 
this   i>.|ai'd.  and    to  prevent    and  puiii-h  the  cliiidcstinc 
and    illegal    detinue   of   them,     d;  ted     Isth    >  ovemhcr 
17<>l;   "an  act  to   encourage    tin-  inhabitants  of   this    is- 
liiud  to  become  owners  of  vesseh   '  dated    |Sth  Novem- 
ber, 1701  ;   "an  jud  to  revive  and  e  .nlinue  an  act,  enti- 
tled, an  net  to  prohibit  and   hinder  tlie   inluibitant«  of 


OF  THE  COLONIAL  CONSTITITTIONS. 


509 


this  island  to  eniplov  their  negroes  and  other  slaves  in 
huving  and  selling,''  dated  23d  December.  1701;  "an 
act  to  raise  and  provide  a  further  strength  (jf  laborers 
to  clear  the  trenches  and  repair  the  l)reast-\vorks  and 
fortifications  of  this  island,"  dated  liod  Januaiy,  1701-2  ; 
"  a.i  act  to  raise  ami  provide  a  further  strength  of  la- 
borers to  clear  the  t'-enchcs  and  repair  the  I>ieast-v.()rk3 
and  foriification.'-' of  this  island,"  dated  Kith  May.  1701- 
2  :  which  laws  i  conceive  are  agreeably  to  biw,  and  do 
not  contain  any  thing  prejudicial  to  lier  Majesty's  pre- 
rogativ  save  that  as  to  th(^  act.  entitled  •  an  act  to  pre- 
vent tV  icn,  "lite  .servants,  negroes,  and  other  slaves, 
running  fmni  ti  i  islan  1,  in  shallops,  boats,  and  other 
vessels,"  pvliicl:  i.i  i-xpired  also)  I  am  ol'o])inion  it  mak- 
ing stealing  or  laldiu:  away  any  boat  telcny,  the  di?  junc- 
tive  (or)  .-houid  liave  been  the  CDpulative  {(iiul),  for  w.mt 
of  which,  taking  away  a  boat,  without  stealing,  is  n.ade 
fel')ny  ;  and  tiie  power  to  kill  ■.nm-aways  i^  unreasona- 
ble, being  inchniec!  besides  slaves. 

And  exci'pt  tin-  "act  lor  ratilyi'ig,  <!:c.  Icfcers  patent, 
gifts,  grants,  ;sn\"  which  I  am  of  opinion  is  fit  to  b'"  re- 
jected, for  instead  ol"  ([uieting  possessions,  as  the  act  is 
drawn,  it  will  probably  disturb  more  than  '  will  ([uiet, 
for  it  conlirriis  all  I  >tters  patent,  grants,  -Ivases.  SiC 
without  restraining  it  to  such  wheri'  the  j;;.,-isessi(.,i  Imth 
been  with  the  grant,  for  want  ol  wlueh  -t  will  revive  dc- 
fecti  ■(•  grant  ',  isnder  whic'i  there  ne\er  was  mii\'  enjoy- 
iiieiit  and  although  there  is  a  proviso  ii>  tlie  jic  aeamst 
reviving  any  letters  paleul,  iS;e  that  have  b(  eu  made 
void  b\  acts,  judgments,  or  otluM'  h  -il  nays  \  d  del'ect- 
ive  g'antr,  uudt>r  wliieu  no  eu|oyme'i;  may  have  beeti, 
if  not  ]rj:ivily  made  void,  of  which  sort  there  mav  t;e 
many,  will  be  ruvived :  iioside.n,   it  i,s   muetiMoiiablu  to 


V  ,       .  t 


'  f 


U 


i::. 


I 


510 


OPINIONS  OF  EMINENT  LAWYERS. 


make  defoptivo  grants  good,  wliero  for  those  defects  sub- 
seciuent  'grants  have  hiHn\,  and  .such  are  made,  good  by 
this  act,  it  uiakhig  the  defective  grants  good  a'cainst  all 
persons  claiming  under  tiie  Crown. 

And  except  the  'act  to  e.icourage  privateers,  in  case 
of  a  war,"  as  to  v,  Inch  I  am  of  opinion  that  its  giving 
for  ever  hereafter  to  privateeis  the  wliole  prizes  to  be 
taken  l)y  them,  intrenches  on  her  Majesty's  prerogative, 
and  her  declaration  in  favor  of  caj)tors,  and  gives  away 
the  penpiisites  belonging  to  the  admiralty,  and  disables 
her  Maji'sly's  men  of  war  to  pi-ess,  on  the  most  urgent 
occasions,  any  seamen  out  of  privateers,  which  is  un- 
doubtedly in  the  power  of  the  loril  high  admiral  to  do, 
and  is  lit  to  be  governed  by  his  direction  ;  and  therefore 
I  think  it  lit  the  same  be  repealed. 

^^MJi  ( h  /  ill r,  iTl>i».  Ewi>.  NoirruEV. 

(li  )  J/'-.  H'v/'.s  np/'iiio/i  (»i  th>:  Adiiiindtij  Jurisdic- 
tion, ill  the  I'litiitiiliriii^. 

To  tlie  I'.ight  ilon.  the  Lords  Commissioners  of  Trade 
and  Plantations. 

M}'  Lords ; 

In  obetruncc  to  \our  Lordships'  connnands,  I  have 
jH'ruM'd  ami  con.-idi'red  two  memorials  from  the  lords  of 
the  admirally,  /niicxed  to  Mr.  Secretary  Poj)|)le's  letter 
of  the  .'itli  of  May  he^t,  and  as  \oin*  Lordships  connnand 
me  to  be  sery  explicit  lu  my  answer,  I  hope  \oiir  Lord- 
fihips  will  lorgi\f  tlie  length  of  it. 

\\\  tlie  lifty-fourlii  articli'  of  his  Majesty's  instructions 
to  tlje  governors  ol  the  Amern'au  plantations,  tlie\  are 
di'erteil,  'thMt  in  e;me  jiii\  gooils.  iuoue\  or  otliei'  es- 
tate of  pirulO!<,  or  piratically  taken,  rhal!  be  bi  iught  iu. 
or  found,  within  the  limits  of  their  respective  gover  - 


i,  -I  r 


OF  THE  COLONl.U,  CONSTITUTIONS.  511 

ments,  or  taken  on  board  any  nhips,  or  vessels,  they  do 
cause  the  same  to  be  seized  and  secured,  until  they  shall 
have  given  his  Majesty  an  aoeount  thereof  and  received 
his  pleasure  concerning  the  disposal  thereof;  but  that 
in  case  such  goods,  or  any  part  of  them,  are  perishable, 
the  same  shall  be  publicly  sold  and  disposed  of  and  the 
produce  in  like  manner  secured  till  his  Majesty's  further 
orders:"  which  instructions  the  lords  of  the  "admiralty 
desire  may  be  annulled,  and  never  inserted  for  the  fu- 
ture in  any  instructions  to  be  given  to  the  governors  of 
the  plantatio.is,   upon  a  sui.position  that  the  governors 
are  sufficiently  authorized  and  instructed  how  to  govern 
themselves  in  those  cases  which  are  the  subject  matter 
of  this  instruction,  by  the  patents  issuing  out  of  the  high 
'  ourt  of  mhniralty,  by  whi,.h  they  are  c..nstitute.l  admir- 
als within  their  respective  governments.     This  instruc- 
tion,  MS  your  h.rdships  will  be  plea.se.l  to  ob..erve.  relates 
to  two  things,  that  is.  first,  to  the  goods  of  pirates  ;  and 
w'condly.  to  goods  piratically  taken:  as  there  .seems  to' 
be  a  very  material  diflerence  between  them,  1  shall  con- 
sider them  singlv. 

The  common  law  of  Fnghuid  is  the  .•onunon  law  of 
the  plantations,  and  all  st.itutes.  in  albrmance  ,>f  the 
common  law,  pa.ssed  in  England,  antecedent  to  the  set- 
tlement of  any  colony,  are  in  force  in  that  colnnv.  un- 
less  there  is  some  private  act  to  the  c<mlrnrx  thou-h 
no  .statutes  ma.le  since  those  setth«ment-  ar..  there  "in 
force,  unless  the  colonies  aiv  particul,.rly  uienlio,,..,!. 

Piracy  i,s  M,,ny  (that  is,  a  capiinj  .rime)  onlv  bv  the 
c  ivd  law.  as  that  law  is  the  rule  ol  pro.vedin-  in  ..ur 
ndnuralty  cnurt.s  imv  was  it  all  e.vo„i./,,„le  bv  tb.-  .v,„j. 
inou  law  Hui  (|,e  a.lmii.dty  juri.sdietioM  w,.^  In  .-vpe- 
neiice,   l.amd  not  to  be  a    leuie.iv  .ub.iuat.-  I,,  tl-   mi  > 


'  t 


i\ 


■  t 


IN 


ii 


K  111 


512 


OPINIONS    OF  EMINENT    LAWYERS. 


chief,  since,  by  thoir  law,  no  man  can  be  condemned  to 
death  unless  he  either  conle.sses  his  crime  or  bu  convict- 
ed by  Avitnesses  who  saw  hinv  conmiit  the  fact,  by  which 
means  many  ohondeis  escape  punishment ;  and  there- 
fore, to  remedy  this  mischief,  it  was  en.acted  by  the  stat- 
ute of  the  eight  and  twentieth  of  Henry  the  Eighth, 
cbapter  the  hlteenth,  "  that  all  trea.sons,  murders,  robbe- 
ries, &c.  committed  by  jjirates  on  the  high  .-^eas,  or  in 
any  other  jilace  where  the  admiral  pretends  jurisdiction, 
phall  be  incjuired  and  tried  in  such  counties  within  the 
realm,  as  shall  be  limited  by  the  King's  commission,  in 
like  manner  as  if  such  oftences  were  done  at  land  ;  and 
that  sucli  comnii  -<i()ns  shall  be  directed  to  the  lord  ad- 
miral, his  lieuti'uant,  nr  deputy,  and  to  three  or  four 
such  others  as  the  Im^i  chaniiellor  shall  name.  '  And 
further,  alter  several  directions  lor  juries,  presentments, 
&c.  it  i-  enacted.  '■  tliat  such  as  shall  be  convict  of  such 
oflenct's,  shall  suH'er  death  without  benefit  of  (dergy,  and 
forfeit  lands  aiul  goods,  as  in  case  of  felonies  and  mur- 
ders done  at  land.' 

Kvei-  since  this  statute  was  made,  n<»  pirate  has  been 
ever  condemned  by  a  court  of  admiraltx,  t/nd  such, 
but  all  triids  f(tr  piracy  have  been  by  special  conuuission 
for  that  ])urpose,  groinided  u|>on  the  statute.  Now  if 
this  statute  was  of  force  in  the  West  Indies,  no  |>er.son 
could  be  convicted  there  without  a  special  eonum-sion; 
and  if  it  \v;is  not  the  proceedings  nnist  have  been  alt<>» 
gelher  at  the  <ivil  l;iw,  as  received  in  Ibe  admiralty 
courts*,  unaided  by  ;iny  statute,  and  con.secjuenlly  scarce 
any  pcrH(»n  wonld  have  been  convicted  at  all,  for  doubt- 
less tiie  inconveniences  would  be  a.s  l>ad  thcie,  if  not 
wrirse.  tK..n  they  wer*»  at  hi»mc,  Udi»rv  the  iriaking  «»f 
that  statute. 


OF  THE  COLONIAL  CONBTITDTIONS.  613 

By  the  preamble  to  the  statute  of  the  eleventh  and 
tweirth  of  William  the  Third,  chapter  the  seventh  it 
not  only  appears  that  ever  since  the  making  the  statute 
ol  Henry  the  Eighth,  the  trial  of  pirates,  &c.  before  the 
admiral,  &c.  singly,  by  the  civil  law,  had  been  altogeth- 
er  disused  and  laid  aside;  but  also  that  the  statute  of 
Henry  the  Eighth  did  not  extend  to  the  West  Indies  • 
and  therefore  it  is  enacted,  "that  all  piracies,  felonies 
and  robberies,  conunitted  in  or  upon  the  sea,  or  in  anv 
haven,  &c.  where  the  admiral  has  jurisdiction,  may  be 
tried'at  sea,  or  upon  the  land,  in  any  of  his  Majesty'8 
islands,  plantations,  ,^c.  by  commission  under  the  great 
.seal  of  England,  or  admiralty  seal,  &c.'   which  commis- 
sioners, though  they  are  directed  to  proceed  acconling 
to  the  course  of  the  admiralty,  do  not  yet  derive   any 
part  of  their  autlmrity  from  our  high  court  of  admiralty, 
but  only  from  tlieir  spec.tl  commissions  issued   for  that 
purpose. 

From  wJk.i  I  have  already  laid  before  vour  Lordships, 
I  think  it  evident  that  no  trial  of  piratt^s  can  be  in  the 
West  Indi.'s  liad  before  the  admiralty  Courts,  qim  such, 
unless  their  admiralty  judges  will  venture  to  proceed  by 
the  civil  law  singly ;  for  they  cannot  be  aided  by  any 
statutes,  since  (b.>  statute  of  Henry  the  Eighth  does  not 
extend  to  the  West  indies,  and  that  of  King  William  re- 
lates  only  to  those  .special  commissions,   which   special 
oom.iissiims,  founded  upon  this  la.st  mentioned  statute, 
are  constj.ntly  granted  to  the  governors  of  the  resjK^ctivo' 
provinces,  who,  consequently,  together  with  such  other 
persons  as  are  joined  with  them  in  the  commission,  are 
the  only  court  of  judicature  (not  (^ua  vice  admirals,  but 
<iua  special  commissioners)  in  which  any  pirates  can  b« 
condemned. 


9 . 


\    \\U 


I 


\it 


If 


614 


OPINIONS    OF    EMINENT   LAWyERS. 


All  goods,  &c.  whatsoever,  which  in  consequence  of 
any  judgment  are  either  forfeited,  or  upon  any  other  ac- 
count fall  in  custwiiam  legis,  unless  there  is  8ome  par- 
ticular provision  for  that  purpose,  are  necessarily  in  the 
custody  of  that  court  where  such  judgment  was  pro- 
nounced ;  and  the  judges  of  that  court,  or  the  receiver 
by  them  appointed,  are  accountants  to  the  king  for  such 
goods.     Now,  as  for  the  goods  of  the  pirates  themselves, 
the  custody  of  them  can  only  accrue  by  reason  of  the 
forfeiture  which  is  the  consequence  of  tlio  crime  ;  from 
whence  it  follows,  that  the  admiralty  courts,  qua  such, 
cannot  have  any  thing  to  do  with  those  goods ;  for  if 
tb«v  proceed  upon  the  civil  law,  simply,  by   that  law 
there  is  no  forfeiture  at  all,  but  the  forfeiture  for  piracy 
is  created  by  the  statute  by  which  it  is  enacted  that  pi- 
rptes  shall  forfeit  for  robberies,  &c.  done  on  the  seas,  in 
like  manner  as  for  felonies  coniinittetl  on  land,  and  that 
statute  is  e'xtended  to  th.-  West  Indies  by  the  last  men- 
tioned act  of  William  the  Third,  which  act,  by  the  ex- 
press words  of  it,   can  be  put  in  exetution  only  l)y  the 
above-mentioned  special  commissions. 

But  if  all  the  goods  be  presumed  to  :>e  not  the  goods 
of  the  pirates,  but  to  be  only  piratically  taken  from  oth- 
er proprietors,  it  must  be  observed,  that  there  can  be  no 
right  to  the  custody  of  such  g(K)ds  till  there  is  an  adju- 
dication of  the  piracy,  which,  in  the  West  Indies,  can  1x5 
obtai.ied  only  in  a  court  commissioned  according  to  the 
above-ment.  )TT^d  statutt^s. 

And  the  persons  (f)e  they  who  they  will)  who  have 

the   custmly  of  the  go(xls,  are  only  trustees,  in  the  first 

place  for  tl  «  benefit  of  the  right  owners,  and  in  case  of 

.on  claim,  for  the   crown;  for  by  the  art  of  piracy,  the 

property  is  not  chan'.ed,  but  still  remains  in  the  original 


OP  THE  COLONIAL    CONSTITUTIONS,  515 

owner,  and  therefore  it  is  provided  by  the  statute  of 
the  seven  and  twentieth  of  Edward  the  Third,  section 
second  and  ,se  /enteenth,  in  what  manner,  and  by  what 
officers,  such  goods  shall  be  restored.     "If  a  merchant 
lose  his  goods  at  sea  by  piracy  (these  are  the  words  of 
the  statute),  and  they  afterwards  come  to  land,  if  he  can 
make  proof  that  they  are  his  goods,  they  shall  be  re- 
stored to  him  in  places  guildable  by  the  king's  n-^cers 
and  six  men  of  the  country,  and  in  other  places,  by  the 
lords  there,  or  their  officers,  and  six  men  of  the  country." 
Since,  therefore,  there  can  be  no  right  (properly  speak- 
ing) in  any  person  to  have  the  custody  of  the  goods, 
either  of  pirates,  or  piratically  t^iken,  until  the  pirn-y  it- 
self be  adjudged,  and  no  adjudication  can  be  had,  but  in 
a  court  conmiissioned  in  the  above-mentioned  manner, 
and  since  the  custody  of  goods  must  be   in  the  court 
where  tli'  judgment  is  pronounced,  unless  there  be  some 
particular  provi-^ion  to  the  contrary,  and  since  the  gov- 
iTuor  iu  every  province,  by  virtue  of  his  special  commis- 
sion, presides  in  every  such  court,  it  follows  that  he  must 
take  care  of  (and  perhaps  answer  for)  the  persons  to 
whose  custody  tiie  above-mentioned  goods  may  bo  com- 
iiiitl.'.l      For  these  rea.sons,   my  lords,  I  am  humbly  of 
oj)mijn,  that  the  instruction  is  very  properly  given,  and 
that  it  is  not  fit  it  should  be  repealed. 
My  Lords ; 
The  second  memorial  presented  by  the  Lords  of  the 
a(biiiiiilty  to  his  Majesty  in  council,  and  by  your  Lord- 
sliips  relerred  to  me,  contains  a  complaint  of  the  admir- 
alty courts  against  the  frcvjuent  encroachments  which 
tlicy  aflinu  the  provincial  judges  make  upon  his  Majes- 
ty's authority  and  the  admiralty  jurisdiction,  by  dis- 
charging persons  imprisoned  by  the  admiralty  for  debts 


t:\ 


s-ti 


f  i 


;  Km 


l: 


m^ 


516 


OPINIONS  OP  EMINENT  LAWYERS. 


and  penalties  due  to  his  Majesty,  and  by  granting  pro- 
hibitions to  the  proceedings  in  their  courts :  they  pray, 
therefore,  in  order  to  redress  this  grievance,  that  his 
Majesty  woald  be  pleased  to  command  the  governors  of 
the  several  colonies,  to  give  all  countenance  and  assist- 
ance to  the  judges  and  officers  of  the  admiralty,  and  also 
to  restrain  the  provincial  judges  from  interrupting  the 
proceediiigs  of  their  courts. 

This  memorial  from  the  lords  of  the  admiralty  was 
undoubtedly  occasioned  by  the  letters  of  Mr.  Smith,  ad- 
vocate for  the  court  of  admiralty  in  New  England,  and 
the  representation  of  Mr.  Menzies,  judge  of  admiralty  in 
the  Massachusetts  Bry  ;  and  upon  perusal  of  them  both, 
your  Lordships  will  plainly  see  that  the   foundation  of 
this  dispute  is  nothing  but  the  desire  which  the  admir- 
alty  judges  have  of  extending  their  jurisdiction  in  the 
West  Indies:  for  the  first  article  of  which  Mr.  Menzies 
complains  is,  not  that  prohibitions  have  been  directed  to 
their  admiralty  courts,   in  cases  in  wln'ch  by  law  they 
ought  not  to  have   been  granted,  but   that  any  prohibi- 
tions were  granted  at  all ;    and   seems  to  insinuate  very 
plainly,  that  in  case  their  admiralty  there  should  exceed 
its  jurisdiction,  the  subj.^-^t  has  no  other  remedy  than  by 
appeal  to  the  high  court  of  admiralty  at  home.     I  shall 
(>iave  leave  therefore  of  \  our  Lordsliip  to  consider  this 
question  concerning  prohibitions  upon  the  foot  of  those 
iust'ipces  which   are  alleged  by  the  above  mentioned 
gentlemen,  of  the  opju-e.ssions  they  lie  under  from  the 
common  law  courts;  but  I  .shall  lir.-^t  trouble  your  Lord- 
ships  with  a  few  words  concerning  prohibitions  in  gen- 
eral.    That  the  coMinon  law  was  always  jealous  of  the 
encroachments  of  the  civil  law  is  ciMtain,  and  wherever 
the  common  law  prevails,  this  jealousy  must  necessarily 


tm 


OF  THE  COLONIAL  CONSTITUTIONS. 


517 


accompany  it.    J'rohibitions  have  been  the  remedy  con- 
stantly  applied  to  prevent  these  encroachments,  which 
have  always  issued  out  of  the  superior  courts  of  the 
common  law,  by  the  laws  of  New  England,  confirmed 
by  the  Crown ;  (and  I  mentioned  New  England  particu- 
larly,   because  the   disputes    which   have  happened  be- 
tween  the  judges  of  both  laws  in  that  province  have 
given  occasion  to  the  present  question)  there  are  courts 
established  in  that  colony,  and  invested  with  the  same 
powers  that  are  respectively  executed  by  the  courts  of 
King's  bench,  common  pleas,  and  exchequer,  in  Great 
Britain,  and  consequently  a  power  of  granting  prohibi- 
tions may  legally  be  executed   by  them.     Nor  is  it  a 
sufficient  answer  to  insinuate  that  the  statutes  by  which 
the  admiralty  jurisdiction  in  England  is  limited  and  con- 
fined  have  no  relation  to  the   plantati^uis:  for  as   the 
statutes  of  thirteenth  of  Richard  the  Second,  chapter 
the  fifth,  the  fifteenth  of  Richard  the  Second,   chapter 
the  third,  the  second  of  Henry  the  Fourth,  chapter  the 
eleventh,  and  tvventy-seventh  of  Elizabetli,  chapter  the 
eleventh,  arc  not  introductive  of  new  laws,  but  only  de- 
claratory of  wliat  the   cummon  law  was  before,  I  am  of 
opinion  that  they  are  of  force  even  in  the  planUitions ; 
for  let  an  Englishman  go  whereever  he  will,  he  carries 
as  much  of  law  and   liberty  with  him  as  the  nature  of 
things  will   bear;  but  to  shew    that  it   is   impossible  a 
power  of  granting  prohibitions  should  not  be,  wherever 
the    connnou    law  extended,    your  Lordships  will  need 
only  to  recollect  not  only  tlio  inconvenient  but  absurd 
consequences  that  would   follow   in  case  it  were  not  so; 
for  should  the  conn,  of  admiralty  in   New  England  take 
upon  them  to  hold  plea  of  Ireehold,  or  to  take  cogni- 
zance uf  actions  of  debt,  &c.  what  remedy  has  the  sub- 


,lf| 

:  life 


I  it:1:rh 


i 


518 


OPINIONS  OP  EMINENT  LAWYERS. 


I 


•i 


i 


m 


1 


ject  to  vindicate  thut  right  to  tliat  inheritance  which  he 
has   in    being  judged    by  the  common  law.      In  New 
England,  if  tliere  is  no  power  of  granting  prohibitions, 
remedy  he  has  none,  and  consequently  the  benefit  of  the 
common  law  nuist,  in  the  colonies,  be  enjoyed  by  none 
but  those  who  have  wealth  sullicient  to  support  frequent 
appeals  to  Great  Britain.     But  even  in  sucii  case,  how 
is  he  relieved?  to  the  King  in  council  he  cannot  appeal, 
■  1-  that  is  irregular;  from  the   sentence,  therefore,  of  a 
court    of  vice  admiralty   abroad,    he  must  apply  to  the 
court  of  high  admiralty  at  home.     I  submit  it  to  your 
Lordships,  to  determine  how  far  it  is  absurd   to  suppose 
the  law  should  allbrd  the  sul)ject  no  other  remedy  against 
the  exorbitances  of  one  admiralty-  court,  than  by  send- 
ing him  to  another. 

On  the    other  hand,    my  Lords,  if  it  be  granted   that 
the  conmion  law  courts  in  the  })hintations  have  a  power 
of  granting  prohibitions,    though  it  should  be  supposed 
that  (as  very    likely  they  often  do)  they    exceed    their 
bounds,  and  i.ssue    prohibations  in   cases  where  by  law 
they  ought  not,  so  that    the    subject    may    possibly    be 
aggrieved  by  a  cause   being  substracted  from   the  admi- 
ralty jurisdiction,  to   which  it  was  proper,  and  drawn  to 
that  of  the  common  law,  yet  there  is  an  adequate  remedy 
always    ready;  for  by  an  api)i'al  to  his  Majesty,  from 
whom  both  jurisdictions   flow,  be    may    obtain    redress 
against  any    grievance    iir  may  lie    under  by    reason  of 
any  judgment  which  any  court  of  conumui  law  i.i  the 
plantations  can  pronounce. 

I  shall  not  ti'oiibic  vour  Lordships  with  anv  thinw 
more  concerning  ])r(ihibitions  in  general,  l)ut  shall  beg 
leave  to  add  ;i  few  words  concerning  that  .jurisdictiou 
which  I  see  is  claimed  by  the  vice  admiralty  judges  in 


OF  THE  COLONIAL  CONSTTTUTIONS, 


519 


America,   by  virtue  of  tlie  acts  of  trade  and  naviga- 
tion, and  also  concerning  the  instances,  which  are  given 
by  the  above  mentioned   West  Indian  civilians,  of  the 
oppressions  they  lie  under  from  the  common  law  courts. 
In  respect  to  the  acts  of  trade  and  navigation,  I  own 
myself  at  a  lo^s  s<,  nmch  ns  to  guess  upon  which  of  them 
It  IS  that  the  admiralty  judges  in  the  West  Indies  would 
found  an  increase  of  their  jurisdiction,  for  there  is  not 
one  smgle  word  in   them  whicli  can  be  construed  so  as 
to  give  them,   there,  a  grenter    power   than  is  exercised 
by  the  high  court  of  admiralty  at  home.  But  upon  these 
acts,  I  would    beg  leave  to  observe  two  particulars,  the 
first  of  which  is.  that  though  the  term  of  hi.s  Majesty's 
courts  m   general  does   undoubtedlv    comprehend    the 
courts   of  admiralty,  yet   whenever    it  is  enacted    (as 
happens,  I  thiuk,  to  be  the  case  in  everv  one  of  those 
acts,)  that  any  penalty  shall  be    recovered   in   any  of 
h.s  Majesty\s  courts,  by  any  per.son  who  will  seize,  in- 
form, or  sue  lor  the  same,  vhercin  no  cswu,n.  protection 
or  wnga-  of  law  shall  hr-  alhwq/,  the  admiralty  is  abso- 
lutely excluded,  and  cannot  possiblv  have  any    jurisdic- 
tion,  becau.se  thoso  terms   by  which  the  courts  are  de 
scnbed  are  perfo      .-  peculiar  to  the  common  law.  and 
foreign   to  that  law   by  widch  the    courts  of  admiralty 
must  proceed  ;  secondlv.  that  whenev.r  .ny  prosecution 
IS    directed  to  be  had  ip.  any  court   of  record,    the    ad- 
miralty .juri.sdiction    is  utterly  o.vcluded,   since,  by  law 
they  are  not  a  cf)iirt  of  ro(V)rd.  ' 

I  .'^hall  not  need  to  trouble  your  Lordships  with  en- 
umerating the  several  pas.sages  in  the  acts  of  trade  and 
navigation,  snice  the  application  of  these  two  general 
rules  (which  I  take  to  !,e  law)  will  resolve  almost  any 
quest.on  wbich^cnn    arise  upon  the   peru.sal  of  them- 


i  ''i 


i  \ 


I  '• 


620 


OPINIONS  OP  EMINENT  LAWYERS. 


and,  therefore,  ail  that  now  remains  for  me  to  do,  in  or- 
der to  complete  my  obedience  to  your  Lordsliips'  com- 
mands, is  brioHy  to  consider  the  facts  alleged  by  Mr. 
Smith  and  Menzics,  and  the  mothrd  of  remedying  their 
supposed  grievances,  which  the  Lo'ds  of  the  admiralty 
pray  of  his  Majesty. 

The  first    fact   which  they   mention  anK)unts  to  no 
more  than  this :  that  two  persons,  named   John  Oultol 
and  Cornelius  Waldall,  did,  l)y  public  placards,  &c,  insult 
and  defy  the  jurisdiction  of  the  courts  of  admiralty,  and 
upon  a  libel  being  exhibited  against  them  in  that  court, 
they  were  lined.     The  judge  of  common  law,  upon  con- 
sideration of  this  case,  granted  a  prohibition,  which  the 
civilians  there,  it  seems,  think  to  b"  illegal;  but  I  must 
own    myself  to    be   of  another    opinion,  and    that    the 
judges  could   not  refuse  it  upoa  n     .ion.     The  most  that 
a  court  of  adnuralty  i     ■  do,  is  w-  hue  and  impri.son  for 
a  contempt  in  the  face  of  the  courr.     But  there  can  be 
no  proceedings  ])efore  them  for  any  thing  that  is  done 
out  of  court,    and  I   mak^  no  doubt  but  our   courts  in 
"Westminster  Hall  would  have  granted  a  prohibition  in 
the  same  case. 

2.  A  second  complaint  is,  that  an  action  of  trover 
Was  1)rought  for  a  ship  after  it  had  been  sold,  by  decree 
of  the  admiralty  court,  which  might  pc-isi'')!y  be  very 
just,  if  the  whole  case  had  been  stated. 

3.  A  third  ( omplaint  is,  that  a  prohibitior  •  ,s  f^rant- 
ed  upon  a  libel  being  exhibited  in  the  admiralty  court, 
for  transporting  of  wool,  contrary  to  the  acts  of  naviga- 
tion ;  which  I  conceive  to  have  been  .  .'gu:arly  i:  led, 
since  ofTences  of  that  kind  are  directed  to  be  tried  in 
courts  of  record,  and  consequently  the  admiralty  cun 
have  nothing  to  do  with  them. 


OP    THE  COLONIAL  CONSTITUTIOVS. 


521 


^  In  tlit'se  particular.^,  1  am  of  opinion  that  thoir  com- 
^' '  '  =^''^'  "'^i^  ^^'^'11  f,'i'oun(led;  but  then,  as  to  thoir  be- 
ing di.tiiibed  in  the  exerci.so  of  the  admiralty  jurisdict- 
•'•  •  of  what  is,  „r  is  not,  prize,  tliey  certainly  are  in  the 

'      '  to  complain,  and  I  douljt  not   but  vou'r  Lordships 
A.       think  that  it  is  the  duty  of  the  governors  to  support 
.a  ill  it  by  all  means  lawful,  and  it  they  are  ne-li-ent 
ui  so  ,i,.in-   his  Majesty  s  order  for  that  purpuseVould 
uiHu)ul,tedly  make  ihem  careful  for  to  doit  lur  tlie  time 
to  r.unw,  which  brings  me  to  the  end  of  this  l,,ni.  rq.ort 
with  which  yourLordship-  have   been  trouoled"      The 
lords  of  the  admiralty  pray  that  his   Majesiv  would  l,o 
pleased  to  order  the  governors  to  restrain  tiie  pnnincial 
judges  from    interrupting-  the  proceedings  of  the  courts 
of    admiralty;  by  which,  if  they  mean    that  the  judges 
should  be  hindered  Irom  granting  prohibitions,  1  cannot 
e.MKeive  how  they  can  be    relieve.l  in  the  manner  they 
propose;  for  if  the  prohibitions  are  legally  granted,  no 
order  can  authorize  him    to  hinder    them|  and  if  t'hey 
are  not,  the  proper  remedy  is  by  the  api)eai  of  the  party 
•■oncerned.      Dut  to  conclude,  if  your    Lordships,  upon 
H"|"u-y  into  the  firt,    should  f,nd,  as    in  all   probability 
the  fact  as  to  New  England  is.  that  iiie   i)eoj.ie  there  do 
under  a  pretence  of  law  attempt  to  disturb  ami.  perhaps, 
to  banish  from  that  province  the  due  exercise  uf  an  ad- 
miralty jurisdiction,  derived  moi'e  nun     iiately  from  the 
crown  than  that   of  tiicir  own    c.urts,  I  am   humblv    of 
ooinion  that  the    proporest    remed.\     the   admiralty  can 
apply  for,  is,  that  a  bill  mav  !  e  t>rougiit  into  parliament 
next  session  for  (iiat   purpose,  by  which  tiie   manner  of 
trying  piracies,  and  tiie  exer.'ise  of  the  admiralty  juris- 
diction l<.r  tiie    future,  may    be  established  and  red     ed 
to  certainty. 


/       f     »l 


.   t 


■If 


■fi 


Jti/ic  I'M,    1720. 


IX' 


Id 


522 


OPINMONS  CF  EMINENT  LAWYER' 


r^p* 


(7.)  Mr.   Str(tl)an'-s  opinion  on   fhi:  poircr  of  cnJlccting 
admira^t;i  duCs,  in  Jh;rmnda. 

I  ha      perused  the  extract  of  a  letter  from  Colonel 
Hope,  Governor  of  iJe.inuda,  tof^cthcr  with  his  eommis- 
sion  of  vice-admiral,  a     also  the  copy  of  a  commis.sion 
from  the  receiver-general  of  the  rigiils  and  perquisites 
of  the  admiralty  and  from  the  solicitor  and  c(nnp<roller 
of  the  same  to  Robert  Dinwiddie  Esf|.  constitutini:'  him 
their  ai^cnt  at  Bcrmudii.  I)ciiiinjr  iliite  the  1st  of  Septem- 
ber. 17-1  :  and  having;  duly  considcnMl  the  snhjci't  ni;it- 
ter  of  ('iili)ncl  Hope's  (>omplaint,  in  his  ;ifor(\said  letter,  1 
am  of  opiniiMi  thai  Ihf  v'olonel  'i;is  no  liuht  tn  the  'Iik^s 
and    pcnjuisites   of    the    iidiuiraity.   ■\vliich   may    accrue 
■within   the   jurisdiction  of  his  vice-admindty,  to  retain 
fliem  to  his  own    use.  altli-High    perhaps    it  mny  he  true 
tli.it  iii-^  jircdi'cessors  in  that  irovenimcni  may  have   I'li- 
ioNcd  till'  same  witlioiit  v\v\   lia\  inn"  a.'c  nimtcd  tor  Ihciii. 
A'ii'(>-admiral-^   arc    indeed  empoweicd    iiy    tlu'ir  .'om- 
mission  to  co]!e(>t  and  rceive  all  diic<  and  jieiipiisites  of 
the  adiniralt\    \vit!iiii  ti.eir  respeetive    jurisdictions;   hut 
they  ouLiht  t  >  aeeount  for  'he  -aiiii-  to  the  lord^  <'ommis- 
pioner-^,    lor   cxecutini;    the  othee  of  Iiii:li  admiral,  or  to 
sueii  otliei  person  as  tliey  -liili  think  lit  !o  a|>poiiit  for 
that  piirpoHC,  for  the  n.-e  and  behoof  d'  tlie  Crown.     So 
that,  a'  (lie  lord-  commis'iioners  of  th  ■  admiralty  liave  a 
riirlit  to  e.ill   all  viec-'dndrals   to  areomit  for  sucii   dues 
ami  peiipiisitcs  of  lh'>  admiraltv  as  they  -hall  have  re- 
ceived wilbin  their  res^neetive  jurisdictiops,  they  may  ap- 
point proper  persons  to  take  and  reccivi'  those  accomits 
from  the  vice-admirals. 

Hut  I  conceive    that  the   oonnnission   jjranted   by  the 
roceivor-ponerai.  of  (he  rights  ,inu  penpii.sites  oftlie  ad 
miralty,  and  the  ,sulicit^)r  and  comptroller  of  the  same,  to 


OF  THE  COLONIAL  CONSTITUTIONS. 


523 


Robert  Dinwiddle  PJsq.  of  Bermuda,  is  not  to  ho  warrant 
m  law,  tfio  same  bein-  an  encroachment  on  the  i)ower3 
actually  vested  in   Colonel  Hoikj,  by  1  ,s  patent  of  vice- 
admiral;  for  the  power  given  to  Mr.  Dinwiddie  by  his 
commi.ssi()n,  is  not  to  take  and  receive  an  account  of  the 
Colonel  a,^  vice-admiral   of  that   district,  of  m  hat   dues 
and  peniulsites  of  admiralty  may  have  come  in  his  hands 
or  po.s.se.<5sion.  which  perhaps  mi-ht  have  been  ju^fitiahle; 
l)ut  he    iii  thereby  authorized  to   recover,    seize,   collect,' 
and  receive,  all  such  dues  and  p-npiisites  ol   the  admir- 
ftlty,   of.   and    from,  all  and  every   person   and   i)ersons 
what.soever:  wherea^  the  vice-a<lmiral  havin- that  pow- 
er vested  in  him  by  his  patent,  no  otlier  person  '.'an  have 
a  rijrht  to  f.vercist.  it    within  his  jurisdiction.      And   1 
take  It,  that    the    lords  couunissioners  lor  e.\ecutinj<  the 
ollice  of  hifr»'  admiral,  are  by  their  own  patent  restrain- 
ed from  -i-antin-  this  power  of  collectiu;;  and  rc.'eivn,;; 
the  dues  and    profits  of  *he  a-lmivalty  to  other   perM.ns 
besides  the  vice-admirals  and  other  o.'Jicers  i)el„uirinir  to 
the  admiralty,  In  m:cIi  manner  and  sort  a<  the\  formerly 
were  collected  ami  received  uheii  there  ua^,•lll  liudi  ad- 
miral.     Wheretnre.  1  |,im.!.l\  corj/eivc  that  iliis  (  ouuiiis- 
sion  to  Mr.  Dinwiddie,   b.-inir  an    innovation  and  an    .'u- 
croachm(>nt  on   the   vice   adini.al  s    pnn  n-   i,<   vested  in 
him   by  bis  p-tei't.  (lie   ,ame  cannot    m  law  be    juvtilied 
and  nntrl  •  to  be  revokeil. 

Ji<(tf2i\.  \rs.\.  Wim..  SnuMA.v. 

(R)  7Ii<' ophn'on  or  lln  Ait^tnnj  ami  Stlicit ir-Oemr- 
al,    )'nL,iih/  W.ar./.nit  f/i'  trial  foi  (t /,nir</er  conimit- 

tid  lit  S((l. 

Exfrnetof  a  letter  from  Mr  Worsley.  (Jovernor  of  T?ar- 
badoes,  to  the  I^m-ds  Commis.^iioners  Ibr  Trade  and  IMan- 
tations,  Uatttl  the  li4thof  Janua'y,  172i-L». 


?  I 

M 


524 


OPINIONS  OF  EMINENT  LAWYERS. 


"  I  have  the  honor  to  present  to  your  Lordships,  an 
account  of  an  accident  that  has  lately  hapix-ned  here. 
The  4th  of  Deremher  last,  the  St.  Cliristophers  oalley. 
James  Newth.  coniinander.  .siiled  out  of  this  port,  and 
the  torts  fired  some  random  shot  at  her  t.j  hrint,'  her  to, 
ill  that  she  had  not  put  up  the  proper  sional  that  was 
given  her,  or  any  otln'r,  which  is  to  shew  that  she  had 
cleared  out  oi'  all  the  olliees  and  had  liheity  to  depart. 
The  iuast(M\  instead  of  briny-in--  t(.,  hoistt>d  more  sail, 
whence  ;i  matrons  ,,f  .iam.- s  Fort,  susju-tin.-r  she  had 
done  something  irre,-i  iir,  (a^  they  olten  d-  in  this  part 
of  the  -vorld,  oiu"  alxuit  twehc  months  a-o.  attempting 
to  carry  away  rustom-house  oHicer.)  find  a  shot  into 
her  when  sho  was  aiM)ut  two  niile^  ofV,  which  happeued, 
uulortuiiatcly.   ti.  kill    the  mate,   and  woundeit   another 

man.      Tlu.   \,..m.1  i.,, liately  ivturiicd   into  jx.it,  and 

a<  soon  a-  the  master  iutoinicd  lue  of  il,  I  in.MiIivd  into 
the  lact.unnn  whirl,  |  r,,iiud  >lic  had  not  |.ul  up  her  siir. 
nal.  the  niiiM.r  cniiiplainiui:-  it  wa^  unt  a  proper  >i':nal. 
hein-  a  tarpaulin--  hei-lcd  up,,n  tli..  lla->tati .  ;ind,  llauiuh 

I  I'onnd  Mich  >i-naU  h^i.l  1 n  >nuie(ime<  -i\cn  and  liad 

''••••11  I'Wl  lip-  ii>'Veillu'l,->  a.  I  ll„,„.;|,l  it  a  ver;.   iuipi^p- 

'•'■  '""•■    '''!■"     "'"'l''    llli-lll    !'<•    Ilo  >ur|,     piTcedeiits   |nr     tllC 

ruture,  I  suspended  the  .iiptaiu --t  the  t.at  for  ■..me  lime: 
However,  if  the  ma>lei-  nf  tlie  vessel  had  not  likrd  ilic 
Mgnal,  he  onglit  not  In  have  gone  under  sad  lill  Ur  had 
got  another,  and  onghi  l„  have  bn»ught  t..  upon  llie  inrfH 
liring.  J/u  iii^yirulf;,,  at  p,y.mU.  Hi,  umln;  /v  to  hme 
whtt/ier,  aw/  ir/urc,  t/i<>  nuUnm  t'lut  Jirctl  tl,r  s/mt  from 
Jamxa'^Fort  />  to  he  tnal.  ot'  wlutt  rovrt  ran  tah  vo,jni- 
zance  of  it.  The  person  ih.ii  was  kill..,!  I.y  „  j^i,n  from 
the  8hore,vva.>«  upon  the  high  seas  tw,.  miiei  ofl'  of  the 
Bborc,  wliere,  I  appnhend,  my  juriHdieti<.n  does  not  ex- 


0.         .E  COLONIAI.  CONSTITUTIONS. 


525 


teiKl,  ami    his  xMaje.stys  attornoy-genoval  horc  is  of  the 
same  opinion.'' 

We  are  of  opinion,  that  the  inatroj<.s  who  fned  the  shot 
cannot  he  tried  lor  the  death  of  the  mate  in  any  court 
of  eommon  hiw,  hut  that  he  ouiriit  to  h-  ried  for  the 
same  either  in  the  court  of  aihniralt.v  at  iiarhadoes,  or 
by  special  eonnnission  under  statute  ol'  llth  and  12th 
W.  3.  cap.  7  which  is  now  the  most  known  and  usual 
method  of  proceeding  in  ca.ses  of  felonies  done  upon  the 
sea  in  those  parts. 

April  17,  1725.  .  p     YoKKE. 

C.   Wkuju. 
^    (0.)^  Tu:  npminn  nf  iho  Advoruic,  Allurnoj.  aud  Solh- 
itor-G'e/oia/.  i/i   \li\\.  on  the  samf  point. 

,,     ,,  Whitehall,  Nov.  5,  17G1. 

C.ontlemen; 

I  am  dire,(,.,{  hy  the  Lords  Commissioners  for  Trade 
nnd  Plantations,  (o  send  y.u.  the  iuclos(.l  copies  of  a 
h'tt.'r,  which  their  Lordships  have  received  from  the 
'"■nt,.nant-L..,v,.n.ur  of  N\mv  York.  an.I  of  m  .vpoit  ma.io 
to  him  l.\  r,„n,uivMon.Ms,  appoint...!  hv  a  sp<.cial  com- 
mi.sMon  f..r  tl,..  trial  of  the  nia^l.T.  uv.xw.  a„d  s..v..ral  wf 
tlie  .-rew  ..f  a  privateer,  char-..,!  wifh  tl...  mu-.l..,-  „f 
son.  >  men  lu'lonirinir  to  his  .Majesty's  slop  W  in..|„.ster, 
committed  within  a  hay  of  that  provinc.v 

I  nm  fmlher  .lirected  to  acpiaiut  _\oii.  Ih;it  the  liwof 
New  York  up,.n  u  hi.di  th..  ..,„iir.iis>ion  •;..  flie  iriul  of 
these  persons    was   fo.iM.l...f   was    r.p..,.!.,!  hv    n.  .ior  in 


council  of  5(li 


of  S.-itcmliiT.   I  ,"(1(1.   Ill 


.!.. 


.•rat  ion 


of  which,  and  of  the  statutes  of  Sreat  Hrltain  Ahi.h 
have  reference  to  a.imirally  jurisdiction,  a  .l-M.i.t  has 
wcur.ed  to  their  Lordships,  -.hcther  then  ..  in  the  col- 
ony  of  New  York,  or  in  any  of  ho.  of  hi.s  Majostv'.s  colo- 


L 

1  f 

526 


OPINIONS  OF  EMINENT  LAWYERS. 


nies  in  Americn.  (unless  In  laws  which  may  have  been 
passed  in  the  said  colonies),  any  sufficient  authority  for 
the  trial  and  pnnislnnont  of  nnirder  committed  upon  the 
seas  within  the  admiralty  jurisdiction  in  the  said  colo- 
nies; and,  therefore,  their  Lordships  desire  the  favor  of 
your  opinion  upon  the  f  )ll(nvinu-  tpiestions,  as  soon  as 
conveniently  may  he.  to  the  end  that  if  there  should  be 
a  want  ot'snch  ant'  ority.  ^ome  remedy  may  be  provided 
as  soon  as  pt)ssihle. 

(^iK'oticii  Isi. — Does  the  act  of  the  28th  of  Henry 
VIII.  cap.  1').  entitled  foi-  pirat"..^,  (beinj;  passed  before 
tlie  establisliinent  of  any  of  the  Htitish  coloni(>s,)  extend 
to  the  said  colonies:  and  if  it  ih)v>.  how  are  the  reifula- 
tions  therein  set  down  to  l>e  executed  ' 

Wo  are  of  opinidn,  that  the  statute  28  Henry  VIII. 
does  e.\tend  t<>  the  e;ise  of  iiiir.-il<r  committed  anv  wheie 
on  the  hi;;h  seas;  and  consequently  tli;it  a  commission 
miiiht  issc  •  in  the  pri'sent  ca-e  into  any  county  within 
the  realm  t)f  Emjjland.  to  tr\  lli"  olfcmlcrs  who  might  be 
l)i-ou<j;ht  oxer  lor  thai  prr|in.-e.  and  the  witnesKes  exam- 
ined, and  a  }\\y\  sworn  hefore  -uch  eoiami-sinners,  un- 
less that  mode  of  inquiiv  anil  tiial  should  he  deemed  in- 
convenient 

IJiiisfoii  2d.— Does  the  act  of  the  llthanil  12th  of 
William  III.  cap.  7th,  entitled  an  art  lo:'  the  ell'ectual 
suppression  of  piracy,"  ni-  the  7th  section  of  the  act  of 
the  Ith  >il  ( ic'irire  1,  cap.  I  I  th,  entitled  ■  an  ai  ■  for  t lie 
further  preventing  robbery,  burjihirv,  &c."  contain  sulli- 
cieijt  authority  for  the  trial  and  ,.uulalju?"nt  of  [lersons 
puilly  of  murder  upon  the  seas  or  waters  within  the  ad- 
miralty jurisdiction  in  the  plantations  ' 

We  are  of  opinion  that  neitl  er  ol  the  acts  of  parlia- 
ment mentioned  in  this  (jku  •■    were  intended  to  afl'ect 


OF  THE  COLONIAL  CONSTITUTIONS.  527 

the  case  of  jnurders.  Thov  reluto  merely  to  such  Telo- 
nies  as  are  equal,  or  inferior,  to  the  species  particularly 
expressed* 

Qjicstion  3d.— If  the  act  of  Henry  VIII.  cap.  15,  does 
not  extend  to  America,  and  neither  the  act  of  the  llth 
and  12th  of  William  III.  cap.  7th,  nor  the  7th  section 
of  the  act  of  the  Mh  of  Ooorpc  I.  cap.  J  Jth,  do  contain 
sufficient  authority  for  the  trial  and  punishment  of  per- 
sons guilty  of  nuuder  iip.,u  the  <cas  or  waters  within 
the  admiralty  jurisdictions  in  the  i.lant.itions  ;  In  what 
other  authority  and  jurisdiction  arc  such  persons  to  be 
tried  and  punished  in  the  .-aid  plantations? 

We  have  already  aid.  in  answer  to  the  Hrst  qiuere, 
that  the  statiit.'  of  licnry  VIII.  does  extend  to  the  pies- 
ent  case;  hut,  if  that  mctlmd  <.;  trial  and  ].roceeding 
should  he  found  iiicoMV.Miicnt,  it  will  hr  proper  to  applv 
to  the  legislature  for  some  ucv.  provision  adapted  to 
such  ca.se.  (;    jj,^. 

('.  VoRKE. 

F.  Norton. 

(10.)  7),r  ojiiiiiin  oftlic  Attirne.ij  cnnl  Snii.  ;in,-Gen^ 
mil  nf  La rUulocf>,  Chilton,  und  Rau'Iin,  ,.-,  f/,f  fnal  of 
juiuttis  there. 

May  it  ])lcase  your  I']\cclli'n(\ 
We  are  very  sensible  lliat  his  late  Majestv.  King  Wil- 
liam, was  pleased  to  send  a  commissic.n  to  this  i.slantl  for 
trial  of  pirates,  diiected  to  the  Lord  (iiey.  then  (Joveru- 
or,  the  nu'udiers  of  the  coinicil  juxi  <e\.'ial  other  |ier- 
soiis.  We  are  likewise  Well  .satisljed  tli;it  her  pre.-ent 
Majesty,  upon  her  accession  to  the  tiuone.  \\;is  ^raciou!*- 
ly  pleised  hy  her  royal  proclamation,  hearing  dale  the 
*Jth  day  of  March,  in  the  first  vear  of  her  reign,  to  sig- 


i  ! 


M-*i! 


528 


OPIXIO.NS    OF  EMINENT    LAWVEltS. 


iiify  and  declart;  that  all  conmiissious,  ijutli  civil  and 
military,  granted  by  lii.s  said  late  Majesty  should  be  con- 
tinued, and  reiuai'i  in  lull  Ibire  and  virtue  until  her 
Majesty's  pleasure  should  he  further  known,  or  that  oth- 
er provision  ))eiuade  pursuant  to  his  late  Majesty's  coin- 
missions  and  instructi(jns  to  his  governors  and  oflicers  ; 
and  so,  such  oomuiissions  continued  until  your  Excellen- 
cy's arrival  in  this  island  ;  hut  upon  your  coming  here, 
it  was  tile  unanimous  opinion  of  all  pcrsnns  in  this  island 
that  all  coiiMnis>ions  gnintt'd  to  the  i.oid  Civv.  late  (lov- 
ernor  of  this  island,  ceased,  and,  tiiat  if  Iku- Majesty  had 
thought  lit  to  have  contiiuied  the  commission  for  tii;d  of 
pirates,  a  commission  woulil  then  have  been  grantc.l  to 
yoi!  for  that  purpose,  as  well  as  one  to  l.c  (^jvcrnor.  and 
aiiotlu'r  to  be  vice-admiral:  and.  thcrciorc,  we  tliou'dit 
It  was  not  prudent  and  safr  Ibr  your  Excellency  to  di- 
rect any  prosecution  on  tiiiit  commi.-sjou  ilirrcted  to  the 
Lord  (irey,  .^c.  for  ti-ial  of  pirates,  where  the  lives  of 
many  persojis  might  be  coucenied.  eouHdei'lug  also,  ihju 
his  late  Miijesty's  conimi.-^sion  albr.'said  Wii-  direrted  to 
several  menibeis  of  tiie  council,  some  wiuTeni'  were  dead 
before  the  granting  of  the  said  ••oiuiui-sioii  aud  maiiv 
niori-  now  dead  and  gone  o|f  this  i>lanil ;  so  tliiit  it  would 
have  been  ver\  diilicult  io  have  coin  ened  |)ei>ons  enoui^h 
to  make  a  si. Hi, •lent  ,/><,>,■/>/,/.  accoidin-  (o  the  appoint- 
ment of  the  said  coiiiiiii-si.,11.  The  names  (,f  the  .said 
persons,  that  an'  citiier  dead,  or  ^onc-  o|f  are  a-  lolf-ws: 
the  Eord  (Jrey  now  in  England;  Edward  ('raiileiid  EsiJ. 
dead;  liicliard  Sailer  Es.pdea.l;  (ieorge  ,\iidrews  E.sij. 
dead;  John  Ihomley  E^o  .M)ine  years  past  -ritlcd  in 
England:  I'atriek  Meiii  Em,  ,„.w  In  Eii-!aii<l  :  IJicbard 
Set  noNs  ill  Eimlaihl:  Heiiiamiii  «"r\er.  a  cler-Miiaii  , 
Uichan!  Waller  I^N,,  dea.l  :  and  (.eorgc  Earkin  Ksq.  oue 
Oi'  till'  rnnUIli^viMnt'i-«  iroito  ..(V  fl.;^   ,-  1  »•■•» 


OF  THE  COLONIAL  CONSTITDTIONS. 


529 


And  we  aro  humbly  of  opinion,  that  as  long  ns  the 
statute  of  35th  Henry  VIII.  cap.  2.  continues  in  force, 
no  person  whatsoever  can  he  tried  in  this  irtlond  for  a 
foreisn  treason,  without  a  special  commission  from  her 
Majesty  for  that  purpose;  the  said  statu t  ■  positively  di- 
recting that  all  foreign  treasons  shall  be  tried  either  in 
the  kingdom  of  England,  or  hy  a  special  commission  from 
her  Majesty;  and  such  always  has  lieen  the  exposition 
of  that  statute. 

Januanj  12,  1703-4.  E.  Chilton. 

W.    R.\WLIN. 

(11.)  '/hf  opinion  of  till-  AU'iir.rij  atnl  Siiliritor-i Icw- 
rntJ.  XortJirij  nihf  Vionisoit,  on  the  pardon  of  partfi.i  in 
tlio  colonics. 

Qua  re.  J. — Whether  tlie  proclamation  is  a  full  and 
sudicient  pardon  to  an_\  persons  who  .nay  have  couunit- 
ted  piracies  and  robberies  upon  the  iugh  seas  in  Ameri- 
ca within  tiie  time  therein  mentioned;  or,  if  no*  what 
steps  nmst  be  taken  to  ol)tain  it  of  the  -ovei  u  irs  in 
America  ? 

(^hian  2. — Whether,  liy  tliis  proclnmatioii.  murders 
conu7iitted  by  sudi  pirates  are  pardoned  > 

(/nar.'  W — \\  bctlicr  the  persons  wjio  have  committed 
any  robberies,  or  piracies,  or  any  otiiers.  Ity  that  title 
can  hold  the  n)oniesand  etri'clsthev  mav  l)eso  possessed 
of,  and  not  liable  to  be  pro.secuted  for  tliem  \ 

Qiiare  1.— \\  lu'ther.  if  any  persons  having  notice  of 
this  pnudaiuation.  ^hoidd,  !)ctwecn  such  notice  and  the 
oth  of  .lauuary  next,  commit  aiiv  juracies  or  ruijbcries, 
are  entitled  to  the  benefit  of  it? 

To  the  Right  Hon.  the  Lords  Commissioners  fur  Trade 
and  Plantations. 
68 


!  i^} 


530 


OPINIONS    OF    EMINENT    LAWYERS. 


May  it  please  your  Lordships; 

In  obedience  to  your  Lordships'  commands,  signified 
to  us  by  Mr.  Popple,  we  have  considered  of  the  annexed 
qucfries,  proposed,  to  us  by  your  Lordships;  and  as  to 
the  first  grime,  "whether  the  proclamation  is  a  full 
and  sufficient  pardon  to  any  persons  who  may  have  com- 
mitted piracies  and  rol^beries  upon  the  high  seas  in 
America,  within  the  time  therein  mentioned,  or,  if  not, 
what  steps  nnist  be  taken  to  obtain  it  of  the  governors 
of  Ameri(;a,''  we  are  of  opinion,  that  the  proclamation 
does  not  contain  a  pardon  of  piracy,  but  only  his  Majes- 
ty's gracious  pronn'so  to  grant  ]Mrates  such  pardon  on 
the  terms  mentioned  in  the  proclamation,  on  which  eve- 
ry subject  may  safely  rely  ;  l)ut,  that  it  will  be  reasona- 
ble for  his  Majesty  to  give  instructions  to  his  governors 
in  America,  to  grant  tlie  persons  surrendering  them- 
pclves  acpording  to  the  terms  of  such  proclaniatiim,  his 
Maje.'ity's  most  gracious  pardon  for  piracies  and  robberies 
on  the  high  seas. 

As  to  the  second  qimrc,  ■'  whether,  by  this  proclama- 
tion, murders  committed  by  such  [>irates  are  pardoned," 
we  are  of  opinion,  that,  whore  tlie  iimrder  is  cimimitted 
iy  tlu'  piracy,  it  was  his  Majesty's  intention  to  pardon 
the  murder  so  conunilted,  ami,  tliat,  therefore,  it  may 
be  rea,soiial)le,  in  the  instructions  to  his  Majestv's  gov- 
ernors, to  direct  them  to  iustM't  in  the  panlons  by  them 
to  lie  passed,  of  the  ]>ira('ies  and  r(il)l)eries  eonnnitted  on 
the  high  seas,  a  jiardon  of  all  nuirders  eonnnitted  in  the 
same. 

As  to  the  third  yf/i-z/v,  '' wliether  tliC  persons  who  have 
committed  any  robberies,  or  piracies,  or  any  (^ther  by 
that  titU',  can  hold  tlie  monies  and  <nV'ets  the}'  may  be 
.s.)  possessed  of,  and  not  be  liable  to  Ik?  prosecuted  tor 
tiiem  '  we  are  of  opinion,  tliat  a>  lo  the  proper  goods  of 


OF  THE  COLONIAL  CONSTITUTIONS. 


531 


the  pirates,  they  being  pardoned,  the  same  will  not  be 
forfeited,  but,  as  to  the  goods  of  other  persons  which 
they  have  taken  unlawfully  from  them,  the  property 
thereof  by  such  taking  is  not  altered ;  but  the  owners, 
notwithstanding  any  pardon,  may  retake  them,  or  they 
may  recover  the  same  by  an  action  to  be  brought  against 
the  robber  for  the  same. 

And  as  to  the  fourth  qua  re,  "  whether,  if  any  persons 
having  notice  of  this  proclamation,  should,  between  such 
notice  and  the  5tli  ul"  January  next,  commit  any  pira- 
cies or  robberies,  are  entitled  to  the  benefit  of  it,  we  are 
of  opinion,  that  there  is  no  exception  of  any  notice  in 
the  proclamation,  and  his  Majesty  has  been  pleased  to 
give  his'  royal  promise,  which  hi-  will  never  Ijreak,  to 
pardon  pirates  surrendering  themselves.  All  piracies  com-  . 
mitted,  or  to  be  conuuitted,  before  the  said  5th  day  of 
January,  and  for  j)reventing  the  mischiefs  hinted  at  in 
tills  (jHu'i-r.  his  Majesty's  oflicers  are  to  be  diligent  in  ap- 
prehending all  pirates,  for  his  Majesty  has  not  been 
plca<<vl  to  promise  pardon  to  any  pirates  but  such  as  sur- 
render voluntarily,  acconling  to  the  terms  of  the  pi'o- 
clamation. 

Novem'ier  14,  1717.  Enw.  Northey. 

^V^I.  Thomson. 

(12.)  Jill'  (ijiinini  of  the  Altn'iieij-iri'iiiiud  Xartli'ij 
1)11  iipptdl-i  friHii  tlie  Adinirtt'/i/  I'^iirt-^^  in  tlir  Colonics. 

To  tin-  Kiglit  Honorable  the  Lords  Conunissioners  for 
Trade  and  IMantations, 

May  it  please  your  Lordships  ; 

In  obedience  to  your  Lordships'  commands,  signified 
to  me  by  Mr.  I'opple.  1  have  (•()ii>si(lered  of  the  annexed 
petition  of  Peter  Viin  Bell,  praying  the  liberty  of  appeal 


!  -^ 


•    I 


'    \^ 


»I1 


532 


OPINIONS  OF  EMINENT  LAWYERS. 


to  her  Majesty  in  council,  from  a  sentence  pronounced 
in  tlie  admiralty  court  of  Noviis.     And  am  of  opinion,  if 
that  court  was  held  under  the  Inte  King's  comniissiow 
for  governing  the  Leeward  Islands,  as  the    petitioner 
takes  it  to  be,  alleging  that  the  president  and  council 
liad  power  only  to  appoint,  but  not  to  sit  themselves  as 
a  court  of  admiralty ;  or,  if  the  sentence  was  given  by 
the  president  and  council  of  Nevis,  as  -the  council  there, 
in  both  cases,  the  api>eal  ought  to  be  to  her  Majesty  in 
council ;  but  if  the  president  and  council  held  a  court  of 
admiralty,  by  authority  derived  from  the  admiralty  of 
England,  the  appeal  is  to  be  to  the  court  of  admiralty  in 
England ;  and  so  it  was  lately  determined  by  her  Majes- 
ty in  council. 

2Iay  23,  1704.  Edw.  Northev. 

(13.)  The  opinion  of  the  Advocate-General,  Sir  iVa- 
th'iniel  L'o>/(/,  on  the  same  subject. 

My  Lords; 

In  further  obedience  about  the  Eagle  ]>rigantiue,  con- 
demned at  New  York,  and  appealed  upon  hither:  I  find 
that  the  appellants  have  thought  fit  to  drop  such  appeal, 
and  they  proceed  no  further;  s(j  the  condemnation  stands. 
Not  but  that  the  appellants  might  have  re-heard  the 
cause  here,  had  they  thought  fit. 

For.  by  law,  appeals  do  lie  (Voiu  the  aduiiralty  courts 
in  the  plantations,  to  the  lord  high-admiral  of  (Jreat 
J5i-itain,  in  the  high  court  of  admiralty  of  England,  in 
(■(iiiiiuon  maritime  causes. 

As  in  causes  of  prize,  j.roperly,  as  taken  Jure  helli,  to 
the  lonls  of  tlu>  council,  us  commissioners  {"or  appeals,  in 
causes  of  prize,  by  the  American  act. 

Marc/i  13,  1715.  Natw.  Llovd. 


OP  THE  COLONIAL  CONSTITUTIONS. 


533 


(14.)  2he  Advocate-General,  Sir  John  CooUn's  amnion 
on  Ihe  ■S'izurc  of  a  Spanish  hrigantinc,  on  t?ie  high  seas, 
by  an  unc:jin,nis-'sioncd  vessel. 
My  Lords ; 

Til  obedience  to  your  Lordships'  commands,  in  Mr. 
Popple's  letter  of  the  2oth  of  February,  I  have  consider- 
ed the  proceedings  and  merits  of  the  seizure  of  the  Span- 
ish brigantine  therein  mentioned,  and  am  of  opinion,  that 
this  matter  ought  to  be  communicated  to  the  lord  hiL'h- 
admiral,  that  directions  may  issue  to  the  proper  ofFi<er3 
to  proceed,  in  his  lordship's  name,  in  the  court  of  admir- 
alty here,  in  r)nler  to  have  the  brigantine  condemned, 
and  declared  a  perqui.-ite  of  the  admiralty,  being  seized 
at  sea,  by  a  non-comraissioned  ship. 

Doctors  Common;-,  March  3,  1708.  J.  Cooke. 

Sia'thlij. — On  the  national  fisheries. 

(1.)  lh<>  opinion  ef  the  Attorney-General,  Raymond, 
on  the  heads  of  a  pe.tent  for  carfying  on  the  fishei-y  in 
ITl'l. 

To  the  Right  Hon.  the  Lords  Commissioners  for  Trade 
and  Plantations. 

May  it  ]»leasL'  vour  Lordships; 

In  obedience  to  your  Lordships  conmiands,  signified 
tome  l)y  Mr.  Po])ple.  the  2Gth  of  .luly  last,  to  send  my 
opinion,  in  [)oiiit  of  law,  upon  the  draft  of  heads  of  a 
charter,  I'or  incorporating  Sir  Robert  Sinclair  and  oth- 
ers, for  the  bettor  carrying  on  the  fishing  trade  in  North 
Britain,  lit  reuith  sent  back  to  your  Lordsliips,  I  have 
considered  thereof  iind  as  to  Nos.  1,  2,  and  3,  I  have  no 
objection  ;  as  to  Xo.  4,  I  should  think  it  proper  that  the 
elections  on  avuidonces,  in  case  of  death  or  disqualifica- 


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534 


OPINIONS  OF  EMINENT  LAWYERS. 


tiou,   sliould  bo  appointed  to  be  made  within  a  certain 
time,  and  not  left  entirely  to  the  appointment  of  the  di- 
rector.«i;  wliich  may  possibly  hereafter  introduce  incon- 
veniences.    I  should  submit  it  likewise   to  your  Lord- 
ships,  whether  it  would  not  be  proper  to  direct  the  no- 
tice therein  appointed  to  be  given,  to  be  published  in 
the  paper  printed  by  authority  of  the  government,  wheth- 
er it  is  called  the  Edinburgh  Gazette,  or  Courant,  or 
whatever  name  it  is  called  by,  rather  than  to  leave  it  so 
luueii  at  large,  as  to  be  inserted  in  one,  or  other,  of  the 
Edinburgh  newspapers ;  and  as  to  Nos.  5  and  G,  I  sub- 
mit to  your  Lordships,  -whether  the  qualification  for  a 
voter,  or  of  the  governor,  sub-governor,  and  deputy-gov- 
ernoi-,  is  not  too  small,  if  the  capital  stock  is  thought  fit 
to  be  allowed  to  be  so  great  as  G0(),()00/. ;  as  lo  Nos.  7,  8, 
0,   10,  12,  13,  14,  1.1,  I  have  no  objection  ;  as  to  No.  17, 
1  sul)mit  to  your  Lordships,  whether  the  charter  should 
not  siK'ciiy  what  should  be  the  con.seci nonce,  if  the  cor- 
poration should  borrinv  more  on  their  bonds,  than  the 
value  of  the  real  estates  they  shall  have  purcha,sed  ;  as 
to  Nos.  IS,    ill,  20,   I  have  no  objectiim  ;  as  to  21,  his 
Majesty,  by  the  laws  of  England,  by  his  letters  patent, 
caiuiot  make  l^.jids  a.'-signable.  so  as  to  transfer  the  prop- 
erty  to  the  a>sinnee.  but  possibly,  by    he   laws  of  Scot- 
land,  the  property  of  bonds  may  be  transferred  by  as- 
signment to  to  tlie  assignee,  of  which  the  gentlemen  of 
tiie   law  in  Se..tlau(l  ;nv  by  much  the  properest  judges; 
as  to  N,,.  22,  I   have  no  ..l.ie,.ti,„i :   as  to  No.  23,  [  doubt, 
by  the  laws  „f  Kngland,  th.>  King,  by  his  letters  patent,' 
'■""""♦   '"""'•  ""•  '""irse  „f  desr,.„t  ..f  (hing.^  au.j  make 
tilings  in  lh,.;r  „:,tur.-  prr,.,„al  d.wc,.„.|  to  fh.'  heir;   but 
as  tothi.    ilso,   (he   laws  of  Scotland  n.ay   be  .1  iff.. rent, 
which   the  gentlemen  of  the  law   in  Scotland  will   take 


OF  THE  COLONIAL    CONSTITDTIOXS. 


536 


care  to  settle  as  it  ought  to  be  by  that  law ;  No.  24  is 
the  usual  clau^^c  :  these  things  I  .submit  entirely  to  your 
Lordships.     Upon  the  substance  of  the  heads,  as  to  the 
form,  there  is  no  doubt  but  the  lord-advocate  will  settle 
them  as  they  ought  to  be.     I  cannot  omit  mentioning  to 
your  Lordships,  that  when  the  lord-advocate  and  n?y"elf 
received  his  Majesty's  commands  to  consider  the  petition 
of  Sir  Robert  Sinclair,  and  the  other  gentlemen  rnr  this 
charter,  we  sent  a  copy  thereof  to  the  South  Sea  com- 
pany (as  had  been  done  formerly  in  cases  of  like  nature), 
to  know  if  they  had  any  ol)jection  to  it,  who  returned 
us  an  answer,  that  they  had  no  objection  t.)  the  petition, 
but  they  desired  to  see  the  draft  of  the  charter  before  it 
passed.     I  -annot  but  observe  also,  that  by  the  a.t  of 
parliament  of  last  sessims,  which  estal)lish'ed  the  com- 
panies for  insurances,  &c.  page  IKO,  it  is  enacted.  "That 
no  person  should  be  entitled  to  any  greater  share  in  the 
capital  or  nominal  stock  of  either  of  surh  respective  cor- 
porations, than  the  money  which  he.  or  she.  or  tliev,  shall 
have  paid  tow  irds  the  same,'  which  claii.sc.  as  I  take  it, 
was   added  to   prevent   the  turning  them    into   bnl)l,les,' 
their  aversi.m  to  which,  as  the  pedtioncis  have  often  de- 
clared,  .so  I  apprehend  it  is  mucii  lor  tlio  service  of  his 
Majesty  and  the  public  to  prevent;  and    for  that  pur- 
pose, I  presume  to  put  your  Lordships  in  mind,  wbetlier 
it  would  not  be  proper  to  have  a  dause.  tbat  no  trans- 
fer of  any  sbare  of  this  corporation  should  be  permitted, 
unless  it  is  made  witbin  some  sb<.rt  liinite.l  time,  to  be' 
specified  in  the  charter,  after  th.-  contract  f.,r   the  same 
shall  be  made. 

J'/y//.*/H,  1721.  iu,„.  Havmo.nd. 

(2.)  Mr.    /''a„e.i  npinion  of  the  <lutm  on  irhaJ'^  fim. 


030  OPINIONS  OF  EMINENT  LAWYERS. 

To  the  Right  Hon.  the  Lords  Commissioners  for  Trade 
and  Plantations. 

.  "Iv  Lords ; 

In  obedience  to  your   Ltirdships'  commands,  signified 
tomc^by  Mr.  Pop  .le's  letter  of  the  18th  instant,  desiring 
my  r  nnion,  whether  the  indulgences  granted  by  the  act, 
passed  the  last  sessions  of  parliament,  entitled  '•  an  act 
for  encouraging  the  Greenland  fishery  foi  whale  fins,  oil, 
or  blubber  of  whales,  seal  oil,  seal  skins,  and  other  such 
co.r.modities,    imported    into    Gixi.l    Britain    from    the 
Greenland  Seas,  Davis's  Straits,  or  any  other  parts  of 
the  seas  adjoining  or  adjacent  thereunto,"  do  extend  to 
all  the  like  commodities  imported  from  Newfoundland  : 
I  have  considered  the  said  act  of  parliament,  the  inten- 
tion of  which  was  to  encourage  the  fishery  carried  on  by 
the  South  Sea  company  to  Greenland,  auf    in  my  hum- 
ble opinion,  the  indulgences  granted  by  the  said  act  can- 
not be  construed  to  extend  further  than  to  the  commo- 
dities imported  from  the  parts  particularly  described  in 
the  said  act,  into  which  description  the  like  commodi- 
ties imported  from  Newfoundland,  I  apprehend,  cannot 
be  taken  ;  besides,  I  observe  tiie  legislature  has  so  iiir 
restrained  it  to  the  parts  described  in  the  act,  that  an 
oath  is  directed  to  be  taken  by  the  master  of  every  ves- 
sel, upon  importation,  that  the  commodities  were  the 
produce  of  whales,  &c.  actually  caught  in  the  seas  par- 
ticularly mentioned  in  the  said  act. 

(A'f,/>er  25,  1732.  Fkan.  Fane. 

(3.)   T/ir  AUnrucy-General  }Wk<'n  oplniun,on  t/te  fjotp- 
er  of  the  j>i.9Ucrs  of  the  peace  in  Neivjoundlnnd. 

To  the  Right  H<m.  the  Lords  Commi.ssioners  of  Trade 
and  Plantations. 


OP  tHE  COLONIAL  CONSTITUTIONS. 


537 


May  it  please  your  Lordships ; 
In  pursuance  of  your  Lordships' commands,  signified  to 
me  by  letter  from  Mr.  Popple,  transmitting  the  annexed 
copies  of  certain  qweries.  received  from  the  Right  Honor- 
able the  Lord  Vere  Beauclerk,  Commodore  for  the  New- 
foundland convoy,   and  Captain  Osborne,  Governor   of 
that  island,  together  with  a  copy   of  Captain  Osborne's 
commission,  and  of  that  granted  by  him  to  the  justices 
of  the  peace  there,  and  desiring  my  opinion  thereupon : 
I  liave  considered  the  said  qmeries,  and  upon  the  first 
thereof  do  conceive  that  the  justices  of  the  peace  had 
not  sufficient  authority  to  raise   muney  for  building  a 
prison,  by  laying  a  tux  upon  fish  caught,  or  upon  fish- 
ing-boots, the  rather  because  the  act  of  the  10th  and  11th 
Williaiu  III.  for  encouraging  the  trade  to  Newfoundland, 
directs  that  it  shall  be  a  free  trade.     The  power  of  the 
justices  of  the  peace  in  England  for  building  of  gaols,  de- 
pends upon  the  statute  of  the  11th  and  12th  William 
HI.  cap.  19.  by  which  thoy  are  enablerl  to  make  an  as- 
sessment for  that  purpo.se  upon  the  sev*  ral  divisions  of 
their  respective  counfi-s,  after  a  presentment  made  by 
fhe  grand  jury  at  the  assizes,  great  sessions,  or  general 
gaol  Jv.livery.     As  the  justices  of  the  peace  in  New- 
foundland are,  l>y  their  commissions,  to  act  according  to 
the  laws  of  England,  1  apprehend  they  ought  to  have 
pursued  this  act  of  jjai'ianient  as  near  as  the  circumstan- 
ces of  the  cose  would  admit,  and  to  have  laid  the  tax  aft- 
er a  presentment  by  .some  grand  jury,  upon  the  inhab- 
itants, and  not  upon  fish,  or  fishing-boats.     So  far  as  the 
people  have  sulimitted  to  this  tax,  there  may  be  no  oc- 
casioK  to  call  it  in  (luestion,  but  I  cannot  advise  the  tak^ 
ing  of  rigorous  methods  to  compel  a  compliance  with  it. 
As  to  the  second  (prnre,  if  any  persons  are  guilty  of 


I    '3 


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538 


OPINIONS  OK  EMINENT  LAWYERS. 


assaultlnrr  any  of  the  justices  of  the  peace  or  constables, 
cr  of  actual  resistance  to  their  authority,  they  may  be 
indicted  for  such  offences  at  the  quarter  sessions,  and 
punisliod  by  fine  or  imprisonment ;  but  for  contemptu- 
ous words  spoken  of  the  justices  or  their  authority,  they 
can  only  be  bound  to  their  good  beliavi(jr.  Oflences  by 
destroying  the  stocks,  or  whipping-posts,  are  indictable, 
and  may  be  punished  hy  imprisonment  or  fine,  or  partly 
by  the  one,  and  partly  by  the  other;  and  liis  Majesty's 
may  direct  the  fimes  to  be  applied  to  make  good  Puch 
stocks  or  whipping-jtosts. 

As  to  the  third  (jua re,  I  am  of  opinion  that  the  justi- 
ces of  the  peace  cp.nnot  decide  differences  relating  to 
property, and  that  t.heir  power  is  restrained  to  the  ci  im- 
inal  matters  mentioned  in  their  commission. 

As  to  the  fourtli  //'.rm-,  I  am  of  opinion,  that  neith(>r 
Captain  Osborne,  r.or  <he  justices  of  the  peace,  haye 
power  to  raise  any  tjix  for  repairing  churches,  or  any 
otiier  public  works,  except  such  works  lor  which  power 
is  giyen  to  justuvs  of  the  pwicc  in  England  to  leyy  mon- 
ey, by  pavficular  acts  of  j  rliament.  As  to  any  tax  for 
building  a  prison,  it  is  answered  under  the  first  </ii,nY. 

Captain  Osborne's  instructiims  not  haying  been  laid 
b.-fore  me,  1  cannot  judge  what  powers  are  thereby  giy- 
en to  him,  I  lit  I  presume  that  no  jwiwer  is  comprised  in 
those  instructi(ms,  of  imposing  taxes  in  general,  without 
the  conser.t  of  some  assembly  of  the  peojde 
•     Apn/-7,miK  '  1>.'yorkf:. 

(1.)    'Ilf   saiiK    l(nri/fr\<i  oj)liiio/i  (>//   the  poirHf  of  the 
.V(  ni((l  nfliiri.-i  (it  Xi  irt'o,inilJaii(f. 

To  t!ie  King's  I  lo.st  excellent  iMajesty. 

May  it  please  your  Majesty. 


OP   THE  COLONIAL  CONSTITUTTONS. 


539 


In  humble  obedience  to  your  Majesty's  commands, 
siornilied  to  me  by  his  Grace  the  Duke  of  Newcastle, 
your  Majesty's  principal  secretary  of  state,  referring  to 
me  an  extu.^t  of  the  commission  to  Caftain  Osborne, 
Governor  of  Newfoundland,  so  far  as  re'i^tes  to  the  au- 
thority and  directi(m  thereby  given  to  him,  to  appoin. 
Justices  of  the  peace  in  the  several  districts  of  that 
colony,  and  an  extract  of  a  letter  received  from  him 
with  copies  of  two  papers  therein  referred  to,  (all  which 
are  hereunto  annexed,)  by  which  it  might  appear  how 
he  is  o})structed  in  the  execution  of  your  Majesty's  com- 
mands to  him  in  this  respect,  and  particularly,  that  it 
is  pretended  to  be  contrary  to  the  act  of  parliament  for 
encouraging  the  fishery  of  Newfoundh.nd,  and  directing- 
me  particularly  to  take  that  act  into  consideration,  and 
report  to  your  Majesty  how  the  law  si.inds  in  this  ])oint, 
and  whether  there  is  any  fo;nidation  tbr  that  ol«jection, 
or  any  interfering  between  tlie  powers  given  b^-  the 
act  to  the  fislung  admirals,  and  the  auHioi  ities  Avhich 
justices  of  peace,  in  the  manner  fhey  are  established 
iiere,  are  invested  with  by  their  commission  :  I  liave 
considered  the  said  annexed  papers,  and  also  the  act  of 
parliament  above  mentioned,  which  was  made  ii.  the  lOth 
and  '  Ith  years  of  the  reign  of  his  late  Mi-jesly,  King 
William  III.;  and'l  lunnbly  certify  to  your  Mnjesty, 
tlial  by  the  said  act,  it  is  enacted  "That  the  admirals' 
"I"  and  iu  every  port  and  harlMU'  of  Newfoundland,  fbr 
the  time  being,  be,  and  are,  tiiereby  aiithori/cd  and  re- 
'|nirc(l  (iu  order  to  preserve  peace  and  good  govrnniM'iit 
:iiiioMvst  tlu«  s,.ameu  au<l  lishfrmeu,  as  well  in  (luMr  re- 
-|>.vtiv.'  harbors  as  on  tbcslion-,)  to  see  tl,,.  mlos  andor- 
'l"r- iu  ;he  said  act  intaiucl,  concerning  (lie  re-ula 
lii'iiofthe    fishery    there    duly  put  in  execution;  and 


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540 


OPINIONS  OF  EMINENT  LAWYERS. 


i 


that  in  case  any  difference  or  controversy  shall  arise  in 
Newfohnd^and,  or  the  islands  thereunto  adjoining,  be-, 
tween  the  masters  of  fishing-boats  and  the  'nhabitants 
there,  or  any    by-boat-keeper,  for,  or  concerning,  the 
rights  and  property  of  h.,:iing-rooms,  stages,  flakes,  or 
any  other  building  or  conveniency  Tov  fishing  or  curing 
of  fish  in  the  severa-  harbors  or  covee,  the  .said  differ- 
ences, disputes,  or  controversies,  shall  be  judged  and  de-. 
termined  by  the  fishing  admirals  in  the  several  harbors 
and  coves ;"  and  in  case  uny  of  the  said  masters  of  fish- 
ing-ships,   by-boat-keepers,  or  inlnbitonts,  shall  think 
themselves  aggrieved   by  such  judg-aeut  or  determina- 
tion, and  shall  appeal  to  the  'ommuuders  of  an}  of  yojr 
Majesty's   ships  of  war,  a])poiPte(l  as  convoys  for  New 
foundland,  the  said    connnander  is  hereby  authorized 
^nd  empowered  to  determine  the  same,  pursuant  to  the 
regulation  in  the  said  oct. 

These  are  all   the  clauses  in  the   said  act  of  parlia 
ment  which  relate  to  the  present  question,  whereby  it 
appeiirs  that  the  whole  authority  granted  to  tlie  fishing 
admirals  is  restrained  to  the  seeing  the  rules  and  orders, 
contained  in  that  act   concerning  the  regulation  of  the 
fishery  there,  duly  put  in  execution,  and  to  t;     determi- 
nation of  diii.rences   arising  between  tlie    masters   of 
fishing-boats  and  the  inhabitants,  or  fftiy  by -boat-keeper, 
touching  the  right  and  })roperty  of  fishing-rooms,  stages, 
Awakes,  or  any  other  building  or  conveniency  for  fishing 
or  curing  of  fish,  in  the  several  harboi.s  or    coves  o'f 
Newfoundland,  which  is  a  kind  of  civil  jurisdiction  in 
particular  cases  of  property ;  whereas  the  authority  of 
justices  of  the  peace  extends  only  to  brcMches  of  the 
peace,   and  other  criminal  matters,  and  therefore,  I  am 
humbly  of  opinion  that  the  powers  granted  by  your  Maj- 


OP  THE  COLONIAL  CONSTITUTIONS. 


541 


esty  to  captain  Osborne,  to  constitute  justices  of  the 
pea^e  in  Newioundland,  is  not  contrary  to,  or  inconsis- 
tent with,  any  of  the  provisions  in  the  said  act ;  and 
that  there  is  no  interfering  between  the  powers  given 
by  that  act  to  the  fii-hing  admirals,  and  the  authorities 
which  justices  of  the  peace  are  h  ested  with  by  their 
commission. 

Deccmlcr  29,  1730.  p.  Yorke. 

(5.)  Ike  opinion  of  the  Attorney-General,  Ryder,  on 
tie  Kinr/s  power  to  erect  courts  of  justice  at  Newfound-^ 
land. 

To  his  Grace  the  Duke  of  Bedford. 
May  it  please  your  Grace. 

In  obedioice  to  your  Grace's  commands,  signified  to 
me  by  your  Grace's  lettev  of  the  23d  instant,  setting 
forth  that  your  Grace  had  laid  before  the  King  a  letter 
which  you  had  received  from  Captain  Rodney,  late  Gov, 
.^nior  of  Newfoundland,  wherein  he  desires  at  the  re- 
iliifsl  of  the  principal  inhabitants  of  that  island,  that 
your  Grace  would  move  his  Majesty  in  their  behalf,  that 
I>ower  may  be  granted  to  take  cognizance  of  capital 
crimes  there;  his  Majesty  had  thereupon  been  pleased 
to  command  your  Grace  to  transmit  to  me  an  extract  of 
the  said  letter,  that  I  should  con.^sider  of  the  request  of 
the  said  inhabitants,  and  report  to  your  Grace  my  opin- 
ion for  his  Majesty's  information,  in  what  manner  I 
think  his  Majesty  iiuiy  coinrily  with  tbeir  request,  con- 
sistent with  the  13th  artitie  of  the  act  of  parliament  of 
the  lOtli  and  11th  of  the  i*eignof  the  late  King  William, 
for  the  trial  of  persons  guilty  of  capital  crimes  in  the 
said  ishind,  in  any  shire  or  county  in  England,  a  copy  of 
which  article  your  Grace  was  pleased  to  inclose  :  I  have 


542 


OPINIONS  OP  EMINENT  LAWVERS. 


peru.;e(l  and  considered  the  act  of  the  10th  and  llth  of 
King  William  III.  and  the  inclosed  extract  from  Captain 
Rodney's  letter,  and  am  of  opinion  that  his  Majesty  has 
a  prerogative  and  right  to  erect  courts  of  jnstice  in  New- 
foundland for  the  trial  and  punishment  of  all  sorts  of 
crimes  committed  there,  and  that  the  act  of  lOtli  and 
llth  of  King  William  III.  does  not  take  away  or  affect 
that  prerogative,  so  that  his  Majesty,  notwithstanding 
that  act,  may  erect  and  constitute  such  court  there  lor 
the  trial  of  capital  and  other  crimes  as  hit.  Majesty  shall, 
in  his  royal  wisdom,  think  proper. 

I  would  only  take  the  liberiy  of  informing  your  Grace, 
that  about  the  year  1738,  this  matter  was  taken  into 
consideration  by  the  board  of  trade,  in  pursuance,  I  l)o- 
lieve,  of  some  refe;  ^nce  to  them  from  his  Majesty,  (,r  a 
committee!  of  cancil ,  nnd  the  board  did  make  a  report 
concerning  it,  after  having  taken  the  opinion  of  myself, 
and  his  honor  the  present  master  of  the  rolls,  the  then 
attorney  and  solicitor-general,  in  which  report  they  pro- 
posed in^e^ting  into  the  commission  to  tlie  next  govern- 
or of  Newfoundland,  -„  clause  to  empower  tho  governor 
to  erect  a  court  of  justice  there,  to  the  same  effect  as  is 
inserted  into  the  conunission  to  other  governors  of  his 
Majesty's  American  commission  governments;  but  that 
clause  coming  afterwards  to  be  considered  in  council, 
was  rejected,  ps  I  have  been  informed. 

Januar,!^  30,  1740.  J).  \\\iw.\i. 

(G  )  Thi  opinion  of  the  Attoncj-Gvneml,  liifhr, 
that  the  King  could  not  give pnver  ()  e.sf.afjli.s7t  a  criminal 
court  at  Xcwfrnudhinl,  hut  nwhr  the  great  seal. 

To  the  Right  Hon.  the  Lords  Commi.ssioners  for  Trade 
and  Plan  lotions. 


m 


OF  THE  COLONIAL  CONSTITUTIONS.  643 

My  Lords ; 

I  have  peru;.ed  and  considered  the  several  i.npers  your 
Lordships  were  pieasod  to  transmit  to  me,  witli  Mr.  Hill's 
letter  of  the  26th  instant,  desiring  my  opinion,  wheth- 
er a  power  to  take  cognizunce  of  capital  crimes  in  New- 
foundland can  he  granted  to  the  governor  of  that  coim- 
try  ])y  instruction  only,  signed  hy  his  Majesty  in  coun- 
cil, </r  v'hether  it  ought  to  he  inserted  in  his  commission 
under  thegicnt  seal;  and  whether,  if  such  power  must 
he  inserted  in  the  commission,  the  words  proposed  for 
that  purpose  in  the  year  1738,  and  which  were  sent  me, 
are  proper  :  I  am  of  opinion,  such  power  cannot  he  grant- 
ed by  instruction,  or  any  otherwise  than  under  the  great 
seal,  and,  therefore,  if  thought  advisable  to  be  granted 
at  all,  ought  to  be  inserted  in  the  governor's  commis- 
sion ;  but  the  manner  of  his  exercising  such  power  may 
be  prescribed  and  limited  by  instructions,  for  any  breach 
of  which  he  will  be  answerable  to  his  Majesty. 

The  form  of  words  in  the  inclosed  extract  from  the 
draft  of  a  commission  in  1738,  is,  I  think,  proper  for  the 
purpose,  excepting  that  neither  the  power  of  trying,  nor 
that  of  ptirdoning  treasons,  appear  to  me  fit  to  be  in- 
trusted to  the  governor,  or  a  court  to  be  erected  by 
him. 

March  27,  1750.  D.  Ryder. 

(7.)  TJie  opinion  of  the  mme  lawyer,  in  pursiiaticc  of 
the  to  ntcr,  that  the  King  may  instruct  his  Governor  of 
JVcwfoion/land,  to  caii.se  to  he  executed  stick  persons  as 
miy/it  be  convicitd  of  capital  crimes,  (xcept  treason. 

To  the  Right  Hon.  the  Lords  Commissioners  for 
Trade  and  Plantations. 

May  it  please  your  Lordships  ; 


fVY 


( 

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i 

ii 

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i 

It' ", 

.n 


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IM' 


644 


OPINIONS  OF  EMINENT  LAWYERS, 


In  obedience  to  your  Lordships'  desire,  signified  to  me 
by  Mr.  Hills  letter  of  the  8th  instant,  setting  forth  that 
frequent  complaints  huving  been  heretofjre  made  by  the 
commanders  of  his  Majestj's  ships  stationed  at  New- 
foundland, of  the  great  disorders  conunitted  on  that  is- 
land for  want  of  (Courts  of  oyer  and  terminer,  for  the 
trial  of  capital  offences  committed  there,  it  was  the  last 
year  thought  advisable  (after  my  opinion  had  thereup- 
on) to  insert  a  clause  in   the  connrJssion  prepared  for 
Captain  Drake,  empowering  him  to  appoint  commission- 
ers of  oyer  and  terminer  for  the  trial  of  such  capital  of- 
fences,   which   power   was  limited   by  an    instruction, 
whereby  the  governor  was  directed  not  to  suffer  any 
criminal  to  be  deprived  of  life  or  lirnl^  by  any  sentence 
of  such  court,  until  his  Majesty's  pleasure  was  known. 

That  Capt^iin  Drake,  in  a  letter  to  your  Lordships^ 
dated  the  26th  of  December  last,  takes  notice  that  this 
power,  given  him  by  his  commission,  had  had  a  very 
good  effect  in  putting  a  stop  to  the  disorders  and  mur- 
ders which  had  been  committed;  but  reoresent  ■  that  un- 
less power  is  granted  to  execute  in  caaes  of  necessity,  it 
Will  be  impossible  to  bring  the  oftenders  to  the  punish- 
ment due  to  their  crimes,  for  as  there  is  no  prison  ol'  suf- 
ficient strength  to  confine  them  in  during  the  winter 
season,  they  will,  undoubtedly,  be  rescued  by  their  com- 
panions as  it  has  been  frequently  the  case  ;  or  should 
they  remain  in  prison,  they  must  be  destroyed  by  hun- 
ger and  the  excess  of  cold. 

Your  Lordships,  therefore,  desire  my  opinion  upon 
this  affair,  and  whether  I  have  any,  and  what  objection, 
to  giving  tiie  governor  a  power  of  executing  criminals 
convicted  of  capital  offences,  when  he  sees  just  cause,  a^ 
well  aa  of  trying  such  offences :  I  have  considered  the 


OF  THE  COLONIAL  CONSTITUTIONS. 


545 


mtitter,  and  have  no  ohjection,  in  point  of  law,  to  the 
giving  tlie  governor  such  power  as  is  proposed  with  re- 
-pect  to  capital  oftences  :  but  it  does  not  seem  proper  to 
extend  it  to  treason,  nor  to  the  case  of  the  officeis  of  his 
own  ship,  or  of  any  of  the  trading  ships  that  shall  be 
there. 

J/aylG,  1751.  •         '  1).  E'DER. 

(8.)  7'Ao  ajnnion  of  the  Advocate,  Attornnj,  ami  Solic- 
'itor-Gmeral,  Hay,  Nurtun  and  Dp.  Gnij,  how  far  the 
K'mifs  jrrwa-  va-s  llmu'd  at  Ncmfonndland ,  Inj  the  stat- 
ute of  KiiHj  Wi'diam. 

To  the  Right  Honorable  the  Lords  Commissioners  for 
Trade  and  Plantations. 

Mav  it  please  your  Lordships  ; 
In  obedience  to  your  '^o'dships'  commands,  signified 
to  us  by  Mr.  Pownall's  letter,   ,    ted  the  28th   day  of 
February  last,  inclosing  a  project  of  arrangements  pro- 
po.sed  by  the  ambassador  o*"  France,  to  be  reciprocally 
agreed  to  by  the   crowns  of  Great  Britaii\  and  France, 
for  avoiding  any  disturbance  or  dispute  between   the 
English  and  the  French  who  carry  on  a  concurre^fish- 
ery  on  the  coast  of  Newfoundland,  and  sigmfyingtruT 
your  Lordships'  pleasure,  that  we  should  give  our  opin- 
ions, as  soon  as  possible,  upon  the  following  (^lanies  :— 
1st.  Whether  the  articles  of  this  project  are  consistent 
with  the  act  of  parliament  of  the  tenth  and  eleventh  of 
William  the  Third,  cap.  2o.  to  encourage  the  trade  to 
Newfoundland?     2d.  Whether   the  Crown  can   legally 
enter  into,  and  has  any  power  to  enforce  such  regula- 
tions as  are  contained  in  the  several  articles  of  this  pro- 
ject, so  fur  as  they  relate  to  the  subjects  of  (Ireat  Britain, 
either  in  the  substance  of  the  said  arti-^os,  o.    iu  t:  « 


'  \    ■ 

■i 

■J, 

i'l. 


I     'I 


Ml 

.  ^  If- 


546 


OPINIONS    OP  EMINENT    LAWYERS. 


mode  of  earning  thorn  into  execution  ?  Wo  have  taken 
Mr.  PownaU'.s  letter,  and  the  two  //iKfii't  iherein  stated, 
and  the  project  .^ent  therewiiii,  and  hereunto  annexed, 
into  our  consideration,  an  .  are  hunihh"  of  opinion,  1st. 
That  the  article^  of  tliis  project  are  not  consistent  with 
tiie  act  of  tlio  icntli  and  eleventh  of  William  the  Third, 
cap.  2-3.  for  the  encouragement  of  the  trade  to  New- 
foundland, the  same  containing  regidatior.s  Mtid  restric- 
tions, in  several  instances,  contrary  fo  the  i'  ■-.  sions  of 
that  act.  as  well  in  respect  to  the  rights  of  his  Majesty's 
suhjccts,  as  to  the  mode  of  determining  controversies 
arising  there.  2d.  We  humhly  conceive  thnt  the  Crown 
cannot  legally  i-ntor  into,  nor  lias  power  to  enforce  such 
regulations,  the  same  heing  contrary  to  the  .-itatute  of 
King  William,  as  fn-  sis  they  relate  to  the  subjects  of 
(ireat  Britain,  eith'-r  in  the  substance  m|"  them,  or  in  the 
mode  ol'carr\ii':  them  into  oxc;'ution. 

G.  Hav. 
F.  Norton. 
Wm,  De  Grev. 
Liucolu's   Inn,   Jfirr/t    0,    17*14.    „ 

('.).)  'I!t>  opiinoti  of  I'll'  A  '(.rir  1/  ,iii<J  Soliritor-(7ener- 
(il,  S(vrt/,r  (11)'/  Fi/ic'i,  on  tie  En.^tlainl  and  (ri-'in/dtnl 
Compiiiiios. 

Whitehiiil,  Nov.  2o,  1G81. 
Sir: 

I  send  hero  inclosed  tlio  seJH'me,  which  tlie  l-nrds  of 
th?  Connnitlee  of 'i'ladeaud  I'l.iiitit  ions  expect  to  have 
answenil  witiiiua  month,  and  so,  from  lime  to  time,  Jic- 
curdiug  t  1  llie  promise  \-ou  and  tlie  othei-  .ilhcer--  ot'  iho 
CU.stoms  have  made  their  Lorijsliips. 

w  n 


OP  THE  COLONIAL  CONSTITUTIONS. 


547 


Sir; 

I  liave  couslJorod  cT  the  c  iso  in  diflerence  between 
the  'M-eenlai!il  and  Mii<c;)vv  conipaiiies,  and  of  the  pa- 
pers vou  MMii  iioin  the  hii-ds  c.rihe  eoiniuiUee  for  trade, 
aiimngst  wliieh  I  find  my  opinidii  liiveii  luuj:'  i^iiiee.  In 
the  case,  1  lind  iio  mat. 'rial  diHerence  in  the  eases,  as 
stated  ])_v  h(Uh  euuipanies  lo  tht'ir  counsel;  a. id,  upon 
review  of  m\-  cpjnion.  whi(  h  1  nave  there  iziven  at  hii-oo, 
and  to  which  I  ei'ave  h'ave  to  i\  v,  I  sec  no  cause  to 
alter  it  in  either  i)nint.  hut  am  rather  eonlirmed  iu  it, 
u{)on  peru-^al  of  the  o|)iiuoii  uiven  li\  the  eounsid  on  be- 
half of  the  (Ireenland  company,  who  seem  not  to  nave 
wei'^hed  the  whole  de-ii;ii  .i|  the  a .1.  which  \sa-  Lo  re- 
trieve a  decayed  trade,  imt  to  overthrow  a  settled  known 
trade,  which  if  the  act  hail  in  the  least  intended,  it 
would  have  iieen  done  in  UDre  plain  and  express  wonls; 
besides  those  opinions  if),  i,y  way  of  supjio-ilion,  pro- 
same,  that  .-hip-^  or  vessels  are  i;-ed  in  taking-  of  the 
seals,  which  in  fact  is  ikjI  >o,  w'lich  i  humhU  submit  to 
theii-  lorddiip-'  iu(h.;ruent. 

/'<■  '■"••  •''f>l-  K.  Sawvi:ii. 

'rhou;;:h  I  was  once  in<'lined  to  think,  that  the  s(>al 
oil,  imi)orti'd  by  the  Museovia  coin])anv,  was  liable  to 
pay  the  DA  pei  ton,  and  did  -ive  snuic  (ipinu.n  that  \\a\, 
yi't  up, HI  better  coii:i(K'ration  of  the  ,ici.  ami  the  <ircum- 
stance-  of  the  ca.«o,  f  believe  .Mi',  .\ttorne\-  i<  in  (he 
right,  and  timt  they  are  not  uiihin  tiie  ..,  ;. 

11.     I'lM  U. 

>>'  rentiilif. — Oil  C.iinneree. 

iiiis  head  m.iy  be-  di\idei]  iul,)  ,„.■  unxv  a.ilowini;  di- 
visions ;  1.  Manula.'tures  set  up  abroad;  'J.  The  aets  of 
ii:ivi;,Mtion;   3.  Miscolliineous  muttors of  trade      I.  ('ojnM. 


\  V- 


'^Il 


',il!i:1 


548 


OPINIONS    OF  EMINENT  I.AW  'ERS. 


I.^  (] .)  Iho.  opini'vi  of  the  Solirilo,'-<r,neval  7ham^on 
ontiic  Jytig  ••^ prc'ogative  Of  prohibUin''  hissnhjrrts  f,v,n 
goivg  abroad.  '' 

Sir; 
In  oberllonce  to  tlie  commands  of  the  Lords  Comniis- 
sioncTs  of  Trade  and   Plantations,  signifud  In-  yours  re- 
cei-.ed  this  day,  1  have  perused   the  letters   therein   in- 
closed.    The  Kin-  may  prohibit  his  subject  tVoui  g„in- 
out  of  the  realm   without  license,  and  the  oth  of  Rioh^ 
ard  II.  cap.   I'd.  forbids  all  per.s(ms  to  depart  the  rcahn 
without  licen.se,  except  tho.se  .sort  of  per.Mins  mentioned 
therein.     As  to  the  particular  perstms  intending  to  go 
abroad,  a  writ  will  be  granted  from  the  chancer\',  upou 
a  sugg,.,tiun  of  s.ch  intention,  to  prohibit  them  froui  go- 
ing ubnNui,  and  security may  be  recpiired  by  virtue  there- 
of,  tbat  they-  will  uot  .lepart  the  realm  without  licen.^^e, 
wliich  if  they  refusr,   they  may  T  ■  connuiaed  till   suHi- 
cie.it  -e.'urity   is  f.amd.      As  to  tho.xe  alr.ady  abroad,  if 
they  are  re.juired  by  proclamation  t..   return"  liouie,  and 
do  no<  obey,  I  yV^  not  know  of  any  method  of  getting  at 
the,,,   by  any  proco.-s  abroad  ;    but  it  is  prop,-,-  that  "the 
Kiug's  minister,  resi<ling  in  the  country  where  thrv  in- 
habit, d..  re.iuire  that  th.y  may  be  made  to  depart" that 
cou  dry,  in  order  to  tiicir  retinii. 

Monmiur  I  J,   17  IS.  ^y,,    Tmo.mson. 

{'!.)  Mr.     /i;.s/'.s'    ,,pntUm    i/pon    e.<ta'>li.^hu,.,     Hntt^k 
liiiiii>/f(f<  (iiiT'i  III   Fiinirr, 

''""  "'"  '''-'"   """■  tlioLcnls  C inissJc.M.Tsnf  Trade 

and  I'lautatiiin- 

My  l-..r.ls; 

In  obedion.-;.  t<.  your  Lordships' oommnnd,<,  signified 

to  -nr  by  Mr.  I',.|.pl,.,  I  h,u  o  pnuscd  and  .•..uMdere.l  the 

several  lettrrs  ivialmg  i..  tl„.  ostabii>l,ing  ,M.v,.r;,|    inan- 

fa.fuures,  in  foreign  \r.n[..  I.y  IJ.itish  artificer.> ,  but,  us 


OF  THE  COLONIAL    CONSTITUTIONS. 


549 


the  cane  is  not  particularly  stated  unto  me,  it  will  not 
be  pos<>il)le  Ibr  nw  to  give  a  direct  answer  to  the  ques- 
tion proposed.  I  (shall  therefore  beg  leave  of  your  Lord- 
.«hips  to  consider  it  something  at  large,  and  to  lay  down 
some  irenL'ral  jiositions,  which  I  take  to  be  agreeable  to 
till"  law  of  England  ;  a  right  application  of  which,  I  be- 
lieve, will  in  a  great  measure  amount  to  an  answer  to 
such  in(jwii  ies  as  may  be  made. 

1.  That  particular  subjects  should  have  an  uncontrol- 
able  liberty  of  all  manner  of  trading,  is  not  only  against 
the  policy  of  our  nation,  but  of  all  other  governments 
whatsoever.  I  do,  therefore,  take  it  to  be  law,  that  the 
Crown  may,  upon  special  occasion,  and  for  reasons  of 
3tate,  restrain  the  same;  and  that  not  only  incases 
of  war,  ])l:igue,  or  scarcity  of  any  connnodity,  of  more 
necessary  use  at  home,  for  the  provision  of  the  subject, 
or  tin-  defence  of  thtj  kingdom,  &c.  (ui  which  cases  the 
K  iig's  [»rcrogative  is  allowed  to  be  l)eyond  dispute,)  but 
even  foi' the  ])r".Ncrvi>tiou  of  the  balance  of  trade:  as, 
suppose  a  foreign  j)rince,  though  in  other  respects  pre- 
serving a  fair  coni'spondence  and  in  amity  with  us,  yet 
will  net  punct.Killy  observe  such  treaties  of  connnerce 
lis  may  have  been  made  between  the  two  nations  ;  or, 
ill  ci'sc  IIktc  arc  no  such  treaties  existing,  refuses  to  en- 
tt  1-  inln  Mii'li  ii  rcgidatiiin  of  trade  as  may  be  for  the  nm- 
tual  aiivantagf  and  heiiclit  of  both  dominions  on  such 
occasion.  I  am  orii|iiiiioii  that  the  King,  by  his  preroga- 
li\c,  iiia\  |)idhiliit  and  rest r;  in  all  his  subjects  in  gener- 
al, lidMi  fxpoiting  paiticiilar  coniinoditics,  ^^c.  ;  or  else, 
gciicrallv,  iiiun  tiaijiug  to  siu-h  a  particular  countrv  or 
place;  since  trade  does  not  only  deju'nd  upon  tin-  will 
(ir  la\\<  iA'  tlie  prince,  whose  »iii»ncts  ad\ ciitiire  abroad 
tocaiiv  it  Mil,  liut  alsoofth.it  prince  into  whose  conntrv 


,".  , 


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'  ! 

r   i 


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650 


OPIMO.NP     OP    r.MI.NF.NT    '  AWVERS. 


I 


M 

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i 

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is* 


tho  co;nin<i,litio.  a.v  exported,  and  with  whose  subjects 
couiinerce  is  ne-otiated  and  contmcted  ;  without  such  a 
power.  iti<  .il.vious  (hat  the  jrr.v.-rnnu-nt  of  Eu-Iancl 
couUl  jiot  l)e  upon  eonal  terms  witli  rhe  rest  of  its  ihmo-I,. 
bors.and  since  trade  depends  principailv  upon  sueli  trwit- 
ies  and  aHian^es  as  are  en.ered  int..  I.v  the  Crown  with 
foreign  princes:  and,  since  the  power  of  enterin- into 
such  treaties  I.  vested  absolutely  in  the  Crown,  it  n3c- 
es.ardy  r.Uou-s  tnat  tlu-^  inanagenient  and  directum  of 
trade,  must,  in  a  great  measure,  belong  to  tlie  King. 

2.  Things  of  this  nature  arc  not  to  be  c.nisidcred 
strictly  accortling  to  those  municipal  laws,  and  tho.se  or- 
'iniary  ruk..  ly  u  liieh  the  private  property  of  <Mbiect,s 
i-osidcnt  uithiuthe  king.h.mi.,  determinJd  ;  but  a  re- 
.irard  nu.^t  also  be  had  to  the  laws  of  nations,  to  the  p.l- 
K-yand  saf,.tynf  tl.okin^.lon,;  the  particular  interest 
'<".!  n.lvautages  o,  p.-ivafe  m...  mu^t.  in  such  ca^   ^    .rivo 

vvayl„.heuvneralg 1 :  and  acting  against  that,  thom-h 

">  a    way  of  c  .n,inerce,  i.  an  otrence   punishabh-  at   the 
common  law. 

3.    i'orei^n    trade     carried  on    bv    partienlar  subjects 
''"■"'^■"-   i'-'V"'-'  -Ivanta.e.  which  are    nallv  destruct- 
.ve  unto,  or  else  tending  to  the  general  dis-,d\anta.^e  of 
tl.c   Km..,  I,m.  are  under  the  power  of  (|„.   (-,„,,.„   n,  be 
n-tnu.     ,1   or  lotaiiy    prohibited.      Tbe.v  ,..av    be  a  oro- 
'"'""""  "1  comiiieree  without  ooe,,  enmilv  a.  an  .ae'tual 
'l^'^'laration  of  war.  and  partie.dar  subjects,  u  ho   for  uy\. 
vato  jrain,  carry  on  a  tr,-de  abroa.l.  whi.-h  c.ui.es  ■,  ,.en 
'■'•'•:   pniiMHcorloHs  to  the  kingdom,  considered  as  an 
"'""■"    '""'^'    '"    '!"i"^   -.    .nandeulv    aet    a-ain^t    the 
'•"'''"■   -""•'•    ■'"^l"nd,t    no,  onlv  to    b-  p.-ohibited    b.,t 
pmu>hed.     Carrun.r  onsnehtrade..  i-.  i„;,M.b    (what 
^'omo  act.  of  parliament  hav    deelan.d  .o„,e    tnde.  (o 


OF    THE    COLONIAL    CONSTITUTIONS. 


661 


be,)  being  guilty  of  common  nuisances :  and  if  the  Crown, 
which  in  its  administration  of  government  is  to  regard 
the  advantage  of  the  whole  realm,  nhould  not  be  invest- 
ed with  sufHcient  pov.  er  to  repress  and  restrain  such 
common  mischieis,  it  has  not  a  power  to  do  right  to  all 
iis  subjects.  If  the  public  mis-liief-^,  Irom  such  a  way 
of  trading,  be  plain  and  evident,  thore  is  the  same  rea- 
son for  restraining  particular  persons  from  carrying  on 
a  trade  that  draws  such  cons«>rpionces  after  it,  (though 
it  be  a  trade  that  of  itself  is  not  prohibited  by  any  par- 
ticular law)  as  there  is,  that  a  private  subject  shall  not 
make  such  a.'  use  of  his  own  house  or  land  (in  which  he 
has  an  absolute  propriety  and  a  legal  title  to  it),  as  will 
turn  to  the  common  annoyance  and  public  (b'triment  of 
the  rest  of  the  kingdom. 

4.  The  general  trade  of  the  nation,  and  tiie  maintain- 
ing of  the  customs  and  duties  granted  to  the  Crown  tor 
the  support  of  it,  arc  things  of  so  public  a  concern,  tliat 
whatsoever  has  a  dir«ct  and  evident  tendencv  to  the 
discouragement,  and  di.-iad vantage  of  the  one,  or  to  the 
duiiinution  of  tiie  other,  i.s  a  crime  agaiiist  the  public. 
As  an  instance  of  which,  I  shall  mention  it  as  a  kind  of 
precedent,  tiiat  raising  and  spr.'adimr  a  story,  tliat  wool 
vould  not  be  suffered  to  be  exported  upon  such  a  vear 
(probably  by  some  stock-jobbers  in  tiiose  times),  wiiere- 
by  the  value  of  wool  wsis  be;t(en  down,  though  it  did  not 
appear  the  delendauts  reaprd  any  particidnr  advantage 
by  tiie  (h'ct'it,  wns,  upon  tiie  account  of  its  \n  '\)</  an  in- 
jury to  trade,  [»uiiisiied  by  indictni'-nf.  iuul  a  conf.  dera- 
cy,  witiioiit  ".ny  furiher  act  dtuie,  to  impoverish  the  far- 
mers of  the  pxciso.  and  lessen  the  duty  itNclf,  has  bi-en 
held  an  oilenco,  punishable  by  information.  If,  there- 
fore, the  c(  nsequence  of  this  present  midertaking  should 


\l\ 


m 


III 


f 

! 

i-    '   i 


-     i    ' 


:  t' 


552 


OPINIONS  OP  EMINENT  LAWYERS. 


prove  v'hat  is  apprehended  from  it,  there  oan  l)e  no 
doubt  but  that  the  Crowji  has  so  much  interest  and  con- 
cern for  the  trade  of  the  nation  and  its  own  revenue,  as 
to  be  able  to  put  a  stop  to  the  carryinc  <ni  a  thing  so 
mischievous  to  the  one  and  the  other,  bv  the  advice  and 
assistance  of  his  Majesty's  own  subjects. 

o.  As  to  the  particular  sulyocts  so  employed  abroad 
there  is  no  doubt  but  that  the  King,  by  his  prerogative' 
may  restrain   them;  it  is  agreed  .m  ail  hands,  that  the' 
statute  of  fugitives  is  but  an  affirmance  of  tiie  conunon 
law.     That  the  Crown   nmy,  at   its  discretion,   require 
the  personal  presence  and  attendance  of  the  subject,  lest 
the  kingdom  should  be  disfurnished  of  people  for  its  de- 
fence as  it  is  said  in  some  books  ;  and  not  oidv  so,  but 
upou  a  suspicion  or  jealousy   that   he  is  going  abnnul. 
A>^(  'jiiam  phrinui  hohi.'^  ct  qmim  phwihix  <le  pmnJ',  n,,.,^- 
tijf}  prcjmlirmJia  ct  damwm  ifm  promjuemht.  (as  tiu'  writ, 
fWamed  upon  that  occasion,  expressed  it)      The  Crown 
is,  by  law,  entrusted    to  j'udge  what  thin-s  those  arc 
which  shall  be   looked  upon  to  be  mis.•hie^  ous  an.l  ,)re- 
judicial  to  the  Crown  and  people,  and  what  caution  is 
to  be  tivken  against  them;  and  by  that  writ  it  appears, 
it  is  equally  criminal   to  do  any  thing  ol'  that    kiii.l  by 
any  other  band,   as   to  do   it  personally  hims.'lf    and, 
then'fore,  after   the  writ  has  commanded  his    uot  going 
abroad,  it  adds,  nvc  ,pu  ,puap,ar.i  Ih-  j,,.oy:,p,i  n//rm;Jrs, 
mi   allnnptari  facla.^,  quod  i„  nn.sfnnn  sr>,  (Urtr  ro,':>,up. 
no.H,<v  prej„</irHm  c,,h',;'  ntUnt  qmris  ,no<lo :    nee  alt- 
quern  /'/>"'  mi/ln-s'  (xIkc  r(ui.s;i. 

6.  Upon  the  very  foot  of  trade  itself,  it  is  necessary 
that  the  Crown  should  have  a  power  over  th.'  persons 
and  dealings  of  their  subjects  in  f..reigM  parf^.  Hv  the 
law  of  nations,  a  government    if  they  have  no  other  re- 


OF  THE  NATIONAL  C  OMMERCE. 


553 


dress,  take  goods  from  any  of  the  same  nation,  by  way 
of  reprisal  for  injustice  done  by  one  of  the  nations.  So 
that  Englishmen  suffered  to  reside  abroad,  by  their  mis- 
behavior may  endanger  more  than  their  nvn  persons 
and  estates.  But,  as  the  stating  to  your  Lordships,  the 
power  which  the  Crown  has  to  j)rohibit  the  subject  from 
going  abroad,  when  there  is  reason  to  suspect  that  de- 
signs prejudicial  to  the  kingdom  are  carrying  on  alone, 
IS  not  sufficient  to  answer  your  Lordsliips'  purpose,  I 
shall  beg  leave  to  remind  yi,ar  Lordships  of  a  case  par- 
allel to  this,  which  has  already  had  a  determination  at 
the  board:  aiino  one  thousand  seven  hundred  and  five, 
several  English  merchants  were  cc.ncerned  ina  design  to 
set  up  tlie  manufacturing  of  tobacco  in  Russia,  to  which 
pur])ose  they  had  carried  i.ver  the  necchsary  workmen 
and  instruments;  Imt.  upon  application  i  ■  the  bvard  of 
trade,  the  then  lords  connnissitmers  did  represent  it  to 
the  Queen  in  council,  as  their  opinion,  that  tlie  persons 
who  had  been  already  sent  to  Mo'^row,  might  be  recalled 
by  letters  of  privy  seal,  directed  to  her  Majesty's  envoy 
for  that  purpose;  and,  that  the  engines  and  materials  of 
working  should  be  broken  and  destroyed  in  the  presence 
oi'  the  said  envoy  ;  and,  tliat  the  persons  at  home,  who 
were  concerned  in  sending  the  said  workmen  over,  should 
be  enjoined  not  to  send  over  any  more  w(Mkmen  or 
materials,  &c. 

Upon  inquiry,  my  Lords,  I  am  iiiTormed  that  the  '.vid 
works  anil  materials  wi-re  uctually  destroyed  in  llussia, 
and  the  workmen  sent  back  again  by  the  direction  of 
the  envnv,who  took  theadvunlage  of  the  Czar's  absence 
from  the  place  where  they  .vere  established.  What  was 
then  done,  may  certainly  be  repeated.  1 .  is  not  the  bus- 
iness of  a  lawyer  to  consider  how  such  \i  method  of  pro- 


'^^- 


fH- 


11 


I  i. 


554 


OPINIONS  OP  EMINENT  LAWYERS. 


ceeding  may  be  relished  by  a  foreign  court ;  but  only  to 
give  it  as  his  opinion,  that  it  may  he  justijitd,  as  against 
particular  subjects  who  are  guilty  of  so  high  a  crime 
against  their  country. 

Dec.  5,  1718.  Rich.  West. 

(3.)  llvi  opinion  of  the  Attorney-General  MaalonaJd, 
how  far  the  Xing  may  restrain  his  subjects  from  going 
abroad. 

A  case  of  so  much  importance  as  the  present,  and 
not  very  frequently  occurring,  would  require  more  in- 
vestigation than  the  unavoidable  shortness  of  the  time 
permits  me  to  make ;  nevertheless,  certain  established 
principles  furnish  conclusions  which,  in  my  judgment, 
forcibly  apply  to  it. 

The  question  must  be,  first,  Whether  the  British  sea- 
men found  on  board  of  the  Friendship,  have  committed 
any,  and  v/hnt  offence,  and  how  it  is  punishable  ?  Second- 
ly, Whether  Broiigh,  Taylor,  and  Rising,  have  com- 
mitted any,  and  what  offence,  and  how  that  is  punisha- 
ble ?  Thirdly,  Whether,  in  case  an  action  should  be 
brought  on  account  of  the  detention,  there  be  a  good 
defence  tu  it  7  -As  to  the  first,  disobedience  to  the  King's 
lawful  commands,  is,  by  the  common  law.  an  high  mis- 
prision and  contempt,  punishable,  upon  indictment  or 
information,  by  line  and  imprisonment,  aiul  that  the 
King  may  liiwfuUy  connnand  the  return  of  his  sul)joct 
when  out  of  the  realm,  ni  .or  the  penalty  of  seizing 
his  lands  till  he  return,  or  may  command  any  particu- 
lar subject  to  remain  within  th(>  realm,  by  liis  writ  of 
ne  e.reat  rcgntnn,  orall,  orany  part  of  hU  subjects  by  pro- 
clamation, has  been  hmg  and  often  recognized  as  a  part 
of  the  common  law.  ."itzherbert,  N.  B.  fol.  85,  C. 
Bays,  "  that  the  King,  by  his  proclamation,  may  inhibit 


or  THE  NATIONAL  COMMERCE. 


555 


his  subjects  that  they  go  not  beyond  the  seas,  or  out  of 
the  realm  without  license ;  and  that  without  sendin 
any  writ  or  commandment  unto  his  subjects  ;  for  per- 
haps he  cannot  find  his  >ubject,  or  know  where  he  is  ; 
and  therefore  the  King's  proclamation  is  sufficient  in 
itself."  And  the  judges  held  (12th  and  13th  Ed.)  that 
departing  the  realm  without  license,  was  no  contempt, 
though  done  with  intent  to  live  out  of  the  Queen's  al- 
legiance; the  dcpaiting  having  been  before  prohibi- 
tion or  restraint  by  proclamation,  or  writ  of  ne  exeat 
awarded  by  tli'  Queen;  by  which  it  is  plainly  implied 
that  departing  after  proclamation  would  have  been  a 
contempt :  and  even  so  eariy  as  the  reign  of  Edward  I. 
several  persons  were  impleaded  for  having  acted  contra- 
ry to  a  legal  proclamation.  Lord  Hale,  in  his  treatise 
de  portihus  maris,  part  2.  c.  8,  sums  up  the  law  upon  this 
subject,  thus :  First,  At  common  law,  any  man  might 
pass  the  seas  without  license,  unless  he  was  prohibited ; 
Secondly,  At  common  law,  the  King  might,  by  his  writ, 
prohibita  person  particularly  from  going  beyond  sea  with- 
out license,  and  tliis  may  be  done  at  this  day  ;  Thirdly,  At 
common  'aw,  in  time  of  pul)lic  danger,  and^ro  hoc  vice, 
there  might  be  a  g^jneral  inhibition  by  proclamation,  re- 
straining any  from  going  beyond  sea  without  license. — ■ 
From  anotiier  ])assago  in  a  MS.  of  tlie  same  writer,  he 
shows  what  ivind  of  puljlic  danger  he  adverts  to,  for 
speaking  of  tl»e  general  restraint,  as  distinguished  fron^ 
restraining  an  individual,  lie  st'ys,  "  tliis  is  clcarlv 
tliat  restraint  intended  by  tlio  statute  of  magna  charta, 
nivi  puldici  ant>:a  pro'Ultil  facient  (not  as  if  i'.  must  bo  a 
prohibition  by  act  of  parlimament,)  and  this  appears  by 
the  constant  practice,  especially  in  time  of  danger,  when 
a  free  passage  might  either  weaken  the  strength,  or  dis- 


>  i 


i   !■ 


♦   I-  *■-#-  I 


556 


OPINIONS  or  EMINENT  LAWYERS. 


I 


close  the  .ecrets  of  the  r.ahn."  And  after  citing  n^any 
ULstances,  he  adds,  "and  this  prohibition  the  King  mav 
take  oil-  generally  or  particnlarly,  as  he  plcaseth." 

From  these  authorities,  and  the  constant  practice  of 
prohibiting  marines,  by   proclamation,   froia  departing 
the  realm  for  the  purpose  of  entering  into  foreign  ser- 
vice,  at  times  when  the  state  of  Europe  would  render  it 
dangerous  to  weaken  the  strength  of  the  nation,  I  con- 
ceive that  the  British  seamen  on  board  the  Friendship 
who  actually  executed  a  contract  for  the  20th  of  March 
last,    are   guilty  of  a  misdemeanor,    for   which,    upon 
conviction,  they  may  be   fined  and  imprisoned:  as  the 
Kmg,  by  his  prerogative,  may  restrain  all  his   subjects 
Irom   departing   +he  realm,  he    undoubtedly  may   such 
classes  of    tliem,  on  nhich  its  strength  depends. 

Secondly,  ^\•ith  respect  to  Brough,  Taylor,  and  Rising, 
il  the  entering  into  foreign  se^-vice,  in  breach  of  the 
proclamation,  bo  a  crime  in  the  British  seamen,  I  am 
ul  opinion  that  a  conspiracy  to  entice  and  carry  them 
into  foreign  service,  is  also  a  misdemeanor,  punishable 
by  line  and  imprisonment,  if  the  evidence,  upon  ex- 
amination, is  sufficient. 

Tliirdly,  With  rc-^pect  to  the  sufficiency  of  the  defence 
to  an  action  l)rought  iigaiust  the  officers,  I  think  they 
might  justify  the  detention  of  the  ship,  so  long  as  the 
British  seamen  were  on  board,  and  till  thev  received  di- 
rections upon  the  subject.  The  commander  of  a  ship 
actually  disobeying  tha  law,  cannot,  1  apprehend,  insist 
upon  a  clearance.  By  the  12th  Cli.  II.  c.  4.  s.  12  pow- 
er  is  given  to  the  King,  to  prohibit,  by  proclamation' 
the  exportation  of  gunpowder,  &(•.  |,ut  no  .specific  mode 
ol  putting  the  act  in  force,  by  preventing  the  exporta- 
tion, is  pointed  out;  nor   was  any  pointed   out  till  the 


OF  THE  NATIONAL    COMMRRCE. 


557 


29th  George  II.  c.  16,  forfeited  the  gunpowder  ard  in- 
Hicted  a  penalty.  During  the  period  which  elapsed  be- 
tween the  passing  of  those  two  acts,  I  think  the  officers 
of  the  custom.s  must  have  been  justified  in  stopping  a 
ship  having  gunpowder  on  board,  after  n  proclamation, 
till  such  gunpowder  was  relanded ;  and  thjs  proclamation^ 
is  ecpially  warranted  by  the  common  law. 

July  31.s^.  1788.  Ar.  Macdonald. 

(4.)  'Ihe  opinion  of  the  .Att')riiey-(r(-),rral  YorJce  re- 
lating to  iJwjlish  subjects  being  engaged  in  the  East  In- 
dia Company  of  Sweden. 

To  the  RighL  Hon.  the  Lords  Commissioners  for  Trade 
and  Plantations. 
My  Lords ; 

I  received  your  Lordships'  -ommands,  by  letter  from 
Mr.  Popple,  signilyingtc  -ne  that  your  Lord.ships  havir.jr 
some  papers  under  your  consideration,  relating  to  an 
East  India  company  lately  er'^cted  in  Sweden,  wherein 
several  Englislimen  are  thought  to  be  engaged,  not  only 
as  having  shares  in  the  said  company,  but  as  captains, 
supercargoes,  and  sailors,  had  desired  1  would  let  your 
Lordshi[)s  know  what  laws  ore  now  in  force  to  restrain 
his  Majesty's  sulijects, either  in  or  out  of  this  realm,  from 
bc'-.g  anyways  engaged  as  aforementioned,  and  what 
l)enalties  they  are  subject  to;  as  also  my  opinion,  wheth- 
er his  Majesty  ha,-i  nny  power  to  recall  his  subjects  (other 
than  artili(!ers  and  niiinufac^urors)  IVom  foreign  parts 
and  if  they  are  liable  to  any  penalty  upon  their  refusing 
to  return. 

As  to  the  first  ((uescion,  wliat  laws  nre  now  in  force 
to  restrain  his  Maje.-ty'sMil);  :^cts.  .-ithor  in  or  out  of  tho 
realm,  from  being  engaged  either  as  sharers  in  the  .slid 
company,  or  as  captains,  supracargoes,  or  sailors   under 


IH 


m 


*l 


«l«illl<-/i>         V\-iLllV 


.  OIO         IjOI  UM1I|)> 


uiai  tne  act 


558 


OPINIONS    OF    EMINENT    LAWVERS. 


made  in  the  fifth  year  of  the  rcisru  ol  liis  Inte  Majesty 
Kin^r  Georre  I.  entitletl.  "on  act  lor  the  better  socuring 
the  lawful  trade  of  his  Majesty's  suhjocts  to  and  from 
the  East  Indies,  and  for  the  more  ellectual  preventing 
all  his  Majesty's  subjects  trading  thither  under  foreign 
commissions,"  expired  at  the  end  of  the  sessiori  of  parlia- 
ment. 

But  the  act  of  the  ninth  year  of  his  said  late  Majesty's 
-eign,  entitled,  "an  act  to  prevent  his  xMajesty's  subject- 
from  subscribing,  or  being  concerned  in   encouraging  or 
promoting  any  subscription  for  an  East  India  company 
in  the  Austrian  Netherlands,  and  for  the  Vtter  securing 
the  lawful   trade  of  his  Majesty's    subjects  to  and  from 
the  East  Indies,  is  still  in  force;  whereby  it  was  {inter 
(did)  enacted,    that  if  any    subject  of  his    Majesty,  his 
heirs,  or  successors,  should  subscribe,  contribute   to  en- 
courage, or  promote  the  raising,  establishing,  or  carry- 
ing on  any  ibreign  company-  or  companies,    afterwards 
to  be  raised,  formed,  or  erected  for  trading  or  dealing  to 
the  East  Indies,  or  otner  parts  within  the  limits  of  trade 
granted  to  the  English  East  India  company^    or  should 
become    interested  in,  or   entitled    unto,    any    share  h\ 
the    stock  or   capital  of  taich    company  or    companies; 
every  person  so  oifending,    shall  forfeit  all  his    and  her 
interest,  share,  and  concern  in  the  capital  stock  or  actions 
of  such  company    together  with  treble  the  value  there- 
of,  to  l)e  recovered  and  distributed  as  that  act  directs. 

I'enalties  are  also  indicted  by  the  said  act,  upon  any 
of  his  Ma.jesty's  subjects,  who  should  know  of  any 
share  or  interest,  which  any  other  subject  iiad  in  any 
such  compaiiy,  vithout  discovering  the  same,  or  who 
should  accept  of  ay  trust  in  any  share  or  interest,  in 
any  such  foreign  oompanv. 


OF  THE  NATIONAL  COMMERCE. 


559 


It  is  also  enact,  d,  that  if  any  .subject  of  his  Majesty, 
his  heirs,  or  successors,  (other  than  such  as  are  kwfuUy 
authorized  thereunto.)  should  go,  sail,  or  repair  to,  or 
he  found  in  or  at  the  East  Indies,  or  any  of  the  places 
aforesaid  ;  every  person  so  offending,  should  be  guilty 
jf  a  high  crime  and  misdemeanor,  and  should  be  liable 
to  such  corporal  puuishmentor  imprisonment,  or  to  such 
fine,  as  the  court  where  such  prosecution  .should  be  com- 
menced, should  think  fit;  and  should  and  might  be 
.seized  and  broiiirht  to  Lnjrland,  and  upon  their  arrival 
here,  be  committt  I  until  they  should  find  security  to 
an.swer  for  su(  h  ..Hence,  as  this  act  requires. 

By  an  act  iii;ide  in  the  seventh  year  of  the  re^gn  of 
his  late  Majc  Iving  George  I.    cap,  2..  all  contract"? 

entered  into  by  any  of  hi.'^  Majesty's  subjects  for  loans, 
by  -way  of  bottomry,  or  any  ships  of  foreigners  bound 
for  the  East  Indies,  and  for  loadin;^,,  or  .supplying  such 
ships  with  a  cargo  or  provisions,  and  all  copartnerships 
or  agreements  relating  to  any  such  voyage,  or  the  pro- 
fits thereof,  uud  all  agreements  for  wages  for  serving 
on  board  any  such  ships,  are  declared  void. 

Besides  the  particular  penalties  and  provisionst)f  these 
acts,  every  subject  of  his  Majesty,  offending  by  traffick- 
ingor  adventuring  to  the  East  Indies,  or  visitingor  haunt- 
ing the  parts  aforesaid,  under  "olor  of  being  concern- 
ed in,  f)r  employed  by  any  such  new  company,  will  in- 
cur the  penalties  infiictod  by  the  act  in  the  ninth  and 
tenth  years  of  King  William  III.  cap.  44.  viz.  the  for- 
feiture of  all  ships  and  vessels  employed  in  such  trade, 
with  the  guns,  tackle,  apparel,  and  furniture  thereunto 
belonging,  and  all  the  goods  and  merchandizes  laden 
thereupon,  and  all  tao  proceeds  and  effects  of  the  same, 
andal.fo  double  the  value  thereof,  to  be  seized,  sued  for, 


Ml 


f  !•'  H 


560 


OPINIONS  OP  EMINENT  LAWYERS. 


'-}  ' 


and  distril)uted,  as  bv  that,  mid  several  subsequent  laws, 
is  (Ji  roc  ted. 

As  to  the  second  question,  whether  bis  Majesty  hath 
i.nv   power  to   recall  his  subjects  (other  than  artiticers 
and  manutacturers)   from   foreign    parts ;  and  whether 
they  are  liable  to  any  penalty  upon  their  refusing  to  re- 
turn:   I  am  of  ()j)nuon  that  his   Majesty  may,  by  letters 
under  his   privy  seal,  require  any  of  his  subjects  going 
into  foreign  i)ai  ts  without  his  royal  license,  (except  mer- 
chants),   to  return  home  witliin   a   limited    time,    upon 
tiieir  allegiance;  and  also  merchants,  incase  tiiey  are 
guilty  of  any  practices  contrary  to  the  duty  of  their  al- 
legiance ..r  the  laws  of  the  land  ;  and  if  anV  person,  af- 
ter such  letters  of  privy  seal  served  upon  him,  sliall  not 
return   into  Great  Uritain  within  tlie  time  th 'reby  pre- 
scribed,   he  will    forfeit    the   rents  an.l  profits  of  all  ids 
lands  and  tenements  during  his  lifo,  and  ail  lils  {.crsoaal 
estate. 

As  to  MMinen,  his  Majesty  may,  bv  a  genera'  procla- 
mation under  Ids  great  seal,  command  all  .seamen,  being 
his  natural  born  subjects,  who  shall  be  in  the  service  of 
any  fo«fign  prince  or  state,  or  omph)yed  on  board  {ho 
ships  of  foreigners,  to  return  home,  up.  ,  the  duty  of 
tluir  all(  fiance,  and  luider  (he  peril  of  being  g„iltv  of 
a  ••ontempt  <pf  his  roMil  .lutliMrilv  ;  and  al-o  prohibit  all 
seamen  to  go  into  any  havign  servic.v  or  to  serv<- on 
board  the  ships  of  foreigners,  and  such  proelamati-.iis 
have  Ikm'u  Cnnpientiy  jxiblished  in  former  reigns. 

^"''  27.  n::i.  I'^-oKKK. 

(5.)  Mr.  Fdw'^i  ,>i,ii,lnn  ,1.9  to  the  scuh,,,  ,,„>/  nnuhtne- 
?•>/,  fihirh  inrr  ils„,u,.l  f»  he  crportrd,  a,nl  ,'r/ar/,  were 
used  1. 1  fhf  A'/<;'//'v//  >ii,nuifh,iurr.<i. 

Tofhe  Hiirht  Hon  (h- l.onls  Commissioners  for  Tra.Ie 
nnd  I'lantations. 


OF    THE    NATIONAL    COMMERCE.  561 

My  Lords ; 

In  obedieiioe  to  your  Lordships'  commands,  in  Mr. 
Topple's  letter  of  the  27th  instant,  wherein  your  Lord- 
shijis  are  pleased  to  desire  1  should  inform  you,  whether 
tlien>  is  ai\y  law  of  this  kinj^dom  by  which  any  machine 
or  tools  used  in  any  of  the  manufactures  of  this  kinsr- 
dom,  may  he  seized,  at  tlioir  being  put  on  ))oar(l  ship  for 
exportation  to  any  foreign  country;  I  beg  leave  to  in- 
form your  Lordships,  that  1  fin<l  by  the  statute  of  the 
ninth  and  tenth  of  William  111.  chap.  'JSth,  sec.  2d.  that 
boxes,  cases,  or  dial-plates  for  clocks  and  watcl  "s,  with- 
out the  movements  and  maker's  name,  are  prohibited 
from  being  exported  out  of  the  kingdom,  and  are  lialile 
to  be  seized  on  board  ship.  And  by  the  seventh  and 
eighth  of  William  III.  cliaj).  l!)th.  sec.  2d,  frames,  for 
ptockings,  are  also  prohiluted  from  l)eing  exported,  and 
are  also  liable  to  br  seized,  which  are  all  the  machines 
or  tools  used  in  any  of  our  manufactures,  that  I  can  find 
upon  the  nicest  .^'arcli  to  be  j)rohibited  from  exportation 
to  any  foreign  country. 

<A7'>/'r/-2S,    1730.  Fhan.  Faxk. 

II.  (1.)  'IJii  rrpini  of  the  u-lt<ih  .;"'/;/t.^■  iijtou  the  ine- 
11)  •riitl  oj  (lit  Ajrhtin  Ct>ui/'iiiii^.  fom  /tin,/  (/k  ((■s^.i<  iifo,  in 
ii;,s'.». 

In  pur.-uance  of  his  .Majesty's  onler  in  council,  hero- 
luto  auuexcil,  we  do  huiiibly  certify  oui-  opinions  to  be, 
tliat  /iri^ioi.'i  (lie  merthaiiffh)' :  that  it  is  against  the  stat- 
ute for  navigation,  made  |<)r  the  general  good  ami  pre- 
servation of  tlie  ^bip|Mng  and  liaile  of  tliis  Uingilou!,  to 
iiive  liberty  to  Mn\  alien,  not  mad'-  denizen,  to  traile  iu 
•lamaicH,  or  other  his  Majesty  s  plantation.s,  or  for  any 
shipping   belonging  to  alicuf*  Uy  trade  there,  or  export 


■'  ^  ''■  I 


i-f^j 


'    \\ 


'^ » \  Hj 


662 


OPINIONS  OF  EMINENT  LAWYERS. 


!• 


thence,  negroe  ,  provisinns  for  .shipping,  or  aliens  trading 
there;  that  for  ship.s  tLn  .«hall  happen  by  tempest,  or  in 
ca.se  of  poril  and  distress,  to  come  into  the  plantation.s 
lor  preservation,  and  to  an^end  or  take  in  :  .  "ssary  pro- 
visions, or  repair  there,  in  .sucli  case  it  is  l  linst  the 
act  of  navigation  or  any  other  lav/. 

J.  Holt.  R.  Lechmere. 

H.    PoLLEXFEN.  ThO.    RokEBV. 

Ed.  Nevill. 
J.  Powell. 
II.  Gkegouy. 


Gyles  Eyre. 
Peyton  Ventris. 
Jo.  Turtox. 


(2.)  77)e  opinion  of  the  Altornry  ami  S'tUcitm-Gcner- 
al,  IrLly  and  Soz/urs,  on  the  Sjxi/ii.s-h  tra'J,^  in  the  West 
Indies. 

Most  of  the  privileges  and  pennn^ion-*.  proposed  by 
the  Spanish  conunissioner,  cannot  Ite  ginnted  without 
dispensing  witli  tlie  act  of  navigntion,  12th  dr.  II.  cap. 
18.  wherein,  hesidt^s  the  matter  of  law,  there  U  a  great 
consideration  oi"  policv. 

1st.  The  act  reipiircs  that  no  goods  or  coirnnoditios 
wliatsoevei',  shall  Ik*  imi>orted  to.  cip  exjtorted  i'l-oni.  anv 
j)li>ntalioMs.  Itut  in  P^nglish  vessels  IJut  fliis  iniist  liiive 
a  rcasonuhle  cons'.ruction,  and  nuist  he  iindcMvto  '  of 
sucli  goods  anil  commodities  as  art-  to  l>c  traded  with, 
and  lint  of  provisions  for  present  .^ii>tciiaiicc.  or  tackle 
for  refitting  a  ship,  or  siudi  like  neces.siries  lor  accident- 
al occa.sions. 

2d.  'I'o  dis'nn-den  a  ship  merely  for  caiiTning,  ma\  he 
lawfid,  so  ii  l)c  f.tiiit  fid,  ,  hut  ii  is  (hingerous  to  make 
HUth  an  aiticle,  les',  under  the  nmhragr  of  that,  a  son-t 
trade  !-•  covered  ami  CMTie<i  on,  eontrarx   to  tiie  art. 

3d.  Negroes  ftre  mondiandize,  and  can  no  more  he  ex- 


OF   THE    N.ATIONAL    COMMERCE. 


563 


ported,  Dy  the  act,  than  other  goods. — Bullion  is  allowed 
by  the  act  to  be  imported. 

4th.  The  act  makes  a  forfeiture  of  the  ship  as  well  as 
of  the  j!^()od.s,  and  does  not  distinj^uish  whether  the  goods 
belonged  to  the  owners  or  merchants,  or  to  the  officers 
or  seauKMi,  and  it  is  difficult  to  render  any  such  distinc- 
tion pructicat)le. 

5th.  The  laws  and  customs  of  the  place  must  be  ob- 
served; but  in  the  proceedings  there,  due  regard  will  be 
liad  to  the  King  oi  Spain's  oruei  ■■,  and  his  subjects' 
contracts. 

oth.  The  private  exercise  of  religion  will  not  be 
gaui.siid. 

Cko.  Trebv. 

J.    SOMKRS. 

(".)  l/h:  (>2>inioii  of  iue  AttnuDf  a)id  SiiJi(.itov-Gen- 
tiiil,  'li'tvor  and  JIincU-9,  on  carrijiiuj  lot/wood  to  Venice, 
whi'tlur  lc(jaL 

To  the  Right  Hon.  the  Lurd.s  Commissioners  for  Trade 
iuid  Plantations. 

>liiy  it  plcaso  your  Lordships; 
AN  ('  hiivc  cDii^idcicil  (if  till'  scvi  rnl  laws  for  regulating 
fill'  plan'  itioii,  and  ollu-r  tnidi's,  in  Kiigland,  Jind  as  to 
till'  (ii->t  part  of  thi' case,  viz:  the  carrying  lo<:\vood  iVoni 
Jb)ndiinis,  in  tlu'  \\\<{  Indies,  (the  sauir  h.-ing  no  part 
of  \\U  Mai<'  ty'>  plii'tatioiis)  to  Vcnici',  we  caiinot  find 
aii\  law  that  restrains  or  forbids  the  same,  unK'ss  the 
.>-hi|i  (loth  hcloiig  unto  sonic  of  his  Man'sty  s  jilantations; 
and  as  to  (he  landin^^  Knropcan  goods  at  Venice,  and 
cnn\  liiir  the  •^a  me  to  ( iiniiea  in  ca<c  the  ci^tst  of  (Jnineit 
be  ri'ckonc(l  an  KnLin-h  co1m,i\  or  plantation  (which  we 
tliink  it  is  not),  the  same  is  prohihifed  by  the  act  made 


561 


OPINIONS  OF  EMINENT  LAWYERS. 


the  loth  Car.  TI.,  ibr  the  cncouragoinont  of  trade,  under 
the  forreiture  of  ship  and  good.-^,  which  may  be  seized 
any  where,  where  his  Majesty  hath  autiiority. 

But  in  eiise  this  ship  doth  f)elon<r  to  Jiiiy  of  his  Majes- 
ty's phmtations,  she  is  Ibrfeitc  iudachnK  h)gwood  at 
Venice,  by  the  act  22d  and  L')'  ....  II.  to  prevent  plant- 
in-  tobacco  in  England,  and  f,,,-  encouragement  of  the 
plantation  trade  ;  whereby  such  shi^xs  are  prohil)ited 
from  uidading  any  dying  woo.'  in  :iny  port  or  phice  in 
Eirope,  other  tlij.n  England,  Wnles.  or  town  ol'  Berwick. 

Au./N.,rM,  l(i;)!l.  Two.  Trkvor. 

Jo.  Hawles. 

(4.)   7he  import  ni'lhe  Alt>nit,i-(h'ucml    Xnrthni  un 
presirviuij  the  ri<jlus  »/  nrif!.^li-l„iilt  s/nj>x. 

\\'hitehnll,  Murch  ('..  1717-18 
Sir : 

Mr.   r.odolphin,   !it tending  the   I.ords  Counnissioners 
for  Trade  and   I'lant.ili.ms  tl,c  other  day,  upon  the  sub- 
ject matter  of  a  bill,  hy  him  pn.p'wcd,  for  preserving  the 
riglit  of  British-built  ships,  .imongst  .)thcr  things  he  in- 
formed their  Lordships,  that  many  doubts  had  arisen  up- 
on a  certain  clause  in  an  acr,  ■■  for  preventing  frauds,  and 
reguhiting  abuses   in  his    Majesty  >  .iistom^.  '   passed  in 
the  l:5th  and    lltli  \e:.rs  of  King  Cbarh-s  U.  the   wor.ls 
of  whichciau.-^eanMisloih.ws:  ^That  noibreign-buijt  ship, 
that  is  tosay,n(a  builtiuan.N  n|  his  Majesty's  dominions' 
of  .\Ma,  Africa,  (.r  .\merica.  or  otiier  than  such   as  -hall 
{Una   fiilt)  be   bought   betl.re  the    ist  of  O.inl.ei-,   l(;(;2, 
next  ensuing,  and  expressly  nauK'd  in  the  said  \\<{.  shall 
enjoy   tiie  privilege  of  a  ship  belonging  to   Kngland  •  r 
Ij-eland,  although  owi  ,■,!  or  manned  l.y   Knglish,  (e:;ccpt 
such   ship,   only  U.S   .shall  be    taken  at  sea  by  letters  of 


'  wi 


OF   THE   NATIONAL    COMMERCE. 


565 


I 


marque  or  reprisal,  and  condemnation  made  in  the  court 
of  admiralty  as  lawful  p-ize,)  but  all  such  ships  f*hall  be 
deemed  as  aliens'  ships,  and  be  liable  to  all  duties  that 
aliens'  shins  are  lialde  unto,  by  virtue  of  the  said  act  for 
increase  of  shipping,'  luid  navigation." 

Now  their  Lordsliips  would  desire  to  have  your  opin- 
ion how  far  this  clause  extends,  and  what  alteration  it 
has  made  in  the  case  of  foreign-built  ships,  that  is  to  say, 
whether,  by  thes>!  words,  "That  all  ships  shall  be  deemed 
as  aliens'  ships,  and  be  liable  to  all  duties  that  aliens' 
ships  shall  ))e  liable  unto,  by  virtue  of  the  said  act 
lur  increase  of  shipi)ing  and  navigation,"  })c  meant 
that  such  ships,  being  deemed  as  aliens'  ships,  shall  be 
liable  to  the  forfeitures,  in  some  cases,  as  well  as  liable 
to  all  duties  in  other  c^ses,  that  aliens  s  ships  are  liable 
to.  by  virtue  of  the  aforesaid  act  of  navigation!  Or 
whetiier  thi.'  forfeitures,  apj)ointed  by  the  act  of  naviga- 
tion, on  ships  iin(piali(ii'(i,  by  the  said  act,  to  nuikc  some 
voyages,  and  in  trade  in  certain  species  of  goods  therein 
cniiMU'fatcd,  are  so  far  altered  by  the  foregoing  clause, 
in  respect  of  foreign-built  slii[)s,  of  English  property,  and 
maimed  by  I'/niilisli,  though  purchasi-d  .since  tiu:  year 
Hi<"i2,  that  sucli  sliip>  may  make  the  said  voyages,  ancj 
tiaiie  in  tlic  s.aid  cuumeiiited  goods,  paving  aliens"  (hi- 
tics  ;'  A  al<ii  whether  you  have  ever  knowi  tins  point 
controverted  in  the  court  of  exciiecpier,  and  what  judg- 
ment has  bee.    given  thrreii|   m  ?  W  M.    l'oppi,>;. 

lo  the  Kight  Ihiiiorablr  the  Lord.-!  Comiuissio'iers  for 
Trade  and  Plantations. 

May  it  plea.se  your  Loid-hips; 
111  obiMlieiice  to  your  Lordships'  commands,    signified 
to  me  by  .Mr.  Popple,   I  have  considered  of  the  ^/lurriis, 


I  I 


H-IJ 


5G6 


OPIXIOXS  OP  EMINENT  LAWYERS. 


t 


stated  by  your  Lordships  in  tlie  annexed  paper,    upon 
the  act  for  preventing  frauds,  and  regulating  abuses  in 
his  Majesty's  customs,  arising  upon  some  discourse  your 
Lordships  had  with  Mr.   Godolphin,  and  am  humbly  of 
opinion  that  foreign-built  ships,  of  English  property,  and 
maimed  by  English,  though  purchp  .d  since  the  year 
1G62.    may  make   the   voyages  that    any  foreign  ship, 
made  free  Iwfore  tliat  time,  might  liave  made,  and  may 
lawfully  trade  in  the  enumerated  goods,  paying  alien  du- 
ties; and   that  this  has  been  always  the  opinion  of  the 
court  of  exi'lieipier,   and  the  practice   has  been  accord- 
ingly, and    there  is  now  no  pretence  to  fancy  that,  al- 
though such  ships  are  now  deemed   as  alien  ships,  they 
are  liable  to  forfeitures  as  if  they  vrere  in  the  hands  of 
aliens,  for  that  the   only  alteratixju  made  by  the   clause 
stated,  is,  tliat  such  f  )reign-built  shii)s,  owned  bv  Brit- 
ons,  are  to  pny  duty  as  alien   ships,  but  they  are  quali- 
iied,  as  ships  belonging  to  the  people  of  Britain,  to  trade 
as  such  ships   might  have  traded,  by  the  act  of  naviga- 
tion. 

J/rar/i  12.  1717.  Ki,w.  Northey. 

(0.)    Ihc  opinion  of  tJu:  SoLfitor  (ra)rral  T/rmimi^on 
Sihiitish  ^hip.s  tnti/in,/  to  the  liritish  Isand.s: 
Sir  ; 

Li  ob(Mliciic(>  to  the  coiriniauds  of  tht>  Lords  Commis- 
sKiucrs  ll.r  Trmlc  ;mii  I'hnitnlious,  signif."d  by  yours  of 
thr  2(1  iustiint,  I  lliiuk  it  phijn,  thi.t  by  th(«  first  clause 
ill  the  act  of  iiaviiiati..ii.  viz:  the  12th  of  ("ar.  II.,  tliat 
Spanish  ships,  con  iiig  from  Spani-h  ports  in  America, 
laden  with  the  product  ol' tho^c  countries,  are  prohibited 
'"  '"'  "i|'"i't(Ml  into  our  c.)|onifs  or  plantations,  under 
tlie  penally  of  the  loss  of  the  goods  and  ship  ;  and  also 


OF    THE    NATIONAL    COMMERCE. 


567 


f     t 


they  are  prohibited  to  export  goods  from  thence  in  ship- 
ping, not  Enghsl),  &c. 

February  A,  1719-20.  VVm.  Thomson. 

(6.)  Mr.  West's  opinio)}  on  the  same  •snlject. 

To  the  l\i<;lit  Hon,  the  Lords  Commissioners  for 
Trade  and  Plantations. 

My  Lords ; 

In  obedience  to  j'our  Lordships'  commands,  I  have 
considered  the  following  qua  re,  whether  Spanish  ships, 
coming  from  Spanish  ports  in  America,  and  laden  with 
the  products  of  those  countries,  are  prohibited  l)y  any 
acts  of  trade,  and  narticnlarly  those  of  tlic  12th  and  ^'^i\\ 
of  King  Charles  If.  and  that  of  the  7th  and  8th  of  King 
William,  to  unload  rnd  sell  their  cargoes,  i-  any  of  the 
British  plantations  in  America,  and  to  load  again  there'' 
And  I  am  of  opinion  tliat  Spanish  ships,  coming  from 
Spanish  ports  in  America,  &c.  are  witliin  llic  intent  of 
the  above  mentioned  statutes,  and  are  thereby  prohib- 
ited from  unlading  and  selling  their  cargoes  in  any  of 
the  Britisli  ilantations  again  thert'. 

Januari,  Jl),  171'J-20.  Run.   West. 

(7.)  Ilie  oplitiim  of  the  Att'irxi  ij-Genevdl.  jV()rth<  >/,  on 
the  iniportdfinii  of  nunil  .stores  from  HdUaiul. 

To  tbe  Queen's  most  evcelliMit   M;i|\'st\-. 

May  it  please  youi-   Majesty. 

Li  humlile  (ibflicMicf  to  M)ur  Mujesi  v"s  connnand,  sig- 
nified to  me  bv  Mr.  .-^ccri-tary  1  ledges,  I  liave  eou.^idered 
of  tbe  anuexetl  memorial  of  bis  Royal  Highness,  wbere- 
by  it  is  jiroposed  uut>)  \  our  .Mnjesty,  lor  llie  reas(Mis 
therein  mentioned,  that  leave  may  be  given  for  importing 


r-''' 


:    !•  :   a 


se-L 


OPINIONS  OF  EMINENT  LAWYERS. 


tar  and  pitch  from  Holland,  Hamburgh,  or  Piich  other 
foreign  parts,  from  whon.-e  the  same  may  be  had  on  the 
best  t<jrm.s,  for  ilirnishing  her  Majesty's  navy  therewith, 
for  the  ensuing  as   well  as  the  present  year ;  and  I  do 
humbly  certify  your  Majesty,  that  for  explaining  the  act 
for  increa.«ing  and  encouraging  of  shipping  and  naviga- 
tion, by  a  clause  in  the  statute,  made  in  the  14th  year 
of  the  reign  of  the  late  King  Charles  the  Second,  for  pre- 
venting frauds  and  regulating  abuses  in  the  customs,  it 
is  enacted  and  declared,  "That  no  pitch  or  t.a-  shall  be 
imported  into   England,  Wales,  or  Berwick,  fiom   the 
Netherlands  or  Germany,  upon  any  pretence  whatsoev- 
er, upon  penalty  of  the  loss  of  all  the  said  goods,  as  also 
of  the  ships  and  furniture,  one  moiety  whereof  is  ^o  be 
to  your  Majesty,  and  the  other  moiety  to  the  informer, 
who  shall  seize  or  sue  for  the  same;  by  reason  of  which 
clause,  I  am  humbly  of  opinion  that  sucL  leave  cannot 
be  given  to  the  merchants  who  are  to  sell  to  the  com- 
missioners of  your  Majesty \s  navy,  to  im|)ort  those  goods 
from  Holland  or  Hauiburgh,  for  that  it  will  be  licensing 
an  importation  expressly  prohi bite  "  b^^  that  act;  but 
notwithstanding  that  act,  I    .1.,   not   see  but  that  your 
Majesty  may,  for  the  service  of  your  navy,  in  \our  own 
ships,   import  what  pitch   and  tar  your   Majesty   shall 
want  for  that  service,  from  Holland  or  aiiv  other  ])lace, 
that  act  being  intende<l  to  regulate  trade,  and  not  to  re- 
Ptram  the  Crown  from  importing  from  any  plaee  for  the 
service  of  the  navy,  which  ap])ears  from  the    Ibrfeiture 
given  by  that  act  of  the  go  xls  imported,  and  the  ships 
in  which  tl-ey  should  be  imported,  one-half  to  the  Crown 
the  other  half  to  the  informer,  which  is  not  practicable 
in  ca.'e  of  an  im|)ortation  luade  by  your  Majestv;  how- 
ever, there  being  a  bill  ordered  to  be  brought  in  the 


OF    THE    NATIONAL    COMMERCE. 


569 


house  of  commons,  for  a  temporary  suspension  of  that 
part  of  the  act  of  navigation  that  requires  the  merchant 
ships  to  he  manned  with  three-fourths  of  the  mariners 
English,  I  humbly  submit  it  to  your  Majesty,  if  it  will 
not  be  foi  your  Majesty's  service  to  have  a  clause  in 
chat  bill,  to  enable  a  temporary  importation  of  naval 
stores,  as  is  proposed  by  his  Royal  Highness's  memorial. 
Jannanj  13,  1703.  Edw.  Northey. 

(8.)  The  ojitnio?}  of  the  Altorveij,  and  Solicitor- Geiw- 
ui,  Yorl'c  and  Wearg,  on  the  same  topio^. 

To  the  Right  lion,  the  Lords  Commissioners  for  Trade 
and  Plantations. 

May  it  please  your  Lordships  ; 
1.1  obedience  to  your  Lordships'  commands,  'ignined  to 
UP  by  a  letter  from  Mr.  Popple,  of  the  3rd  instant,  trans- 
mitting to  us  the  annexed  copy  of  a  petition  of  the  Mus- 
covy company  to  his  Majesty,  and  directing  us  to  report 
to  your  Lordships  our  opinion,  whether,  as  the  law  now 
stands,  hemp,  of  the  growth  of  Russia,  may  be  imported 
in  English  I'ottoms  from  the  Netherlands?  We  have 
considered  the  said  petition,  and  <lo  apprehend,  that  by 
the  act  of  navigation  no  restraint  is  laid  upon  the  im- 
portation of  hemp,  of  the  growth  of  Russia,  from  other 
places  beside  those  of  its  growth,  or  such  ports  where  it 
can  only,  or  most  \isually  is  shipped  lor  tran.sportation ; 
and  it  appears  to  be  none  of  the  commodities  particndar- 
\\  enuiiierated  in  the  act  of  'Vauds,  14tli  Car.  II.  which 
arc  prohil)ited  to  be  imported  from  Germany  or  the 
Netherlands,  and,  theretbre,  we  are  of  opiinon,  that,  as 
the  law  now  .stands,  such  hemp  may  be  imported  in  En- 
glish shij)))ing,duly  navigated  from  the  Netherlands;  but 

this  being  a  (juare  which  concerns  a  matter  of  so  great 
715 


n 


H  .  • 


"'r  ' 


570 


OPINIONS    OF  EMINENT    T.AWYKP.S. 


consoqi:eiicc   as   the    navigation    of  this    kinpdon),    we 
thought  it  pioporto  transmit  a  copvof  tho  said  petition 
to  the  oonuiiissioners  of  his  Majesty's  customs,  in  order 
to  be  informed  hj  them  what   has  been  the   usage  and 
practice  in  this  instance:  whereupon  the  commissioners 
of  the  customs  liaving  referred  it  to  their  patent  oflicers 
to  certity  such  practice,  were  pleased  to  hay  before  us 
the  cevtiflcate  of  those  ofticers,  hereunto  annexed,  where- 
by it  appears  tliat  hemp  in  gcMiera'  has  been  usually  im- 
ported from  Holland,  and  paid  customs  according  to  the 
book  of  rates,  without   in(piiring  into  the   place  of  its 
growth. 

Man-h  13,  1723.  p.  Yorke. 

C.  Wearg. 

(0.)  Th)  opinio,,  of  tlf  SuJic:for.{;ui(ra!,  Muinda jiic, 
on  Irish  ^]uj:>s  ccnrj^^y  ],arlc,j  j.  >,n  liocMle  to  Zi-ibcji, 
in  1708. 

Sir  : 
1  was  very  sorry  to  find,  by  yours  of  the  I2tli  of  this 
instant,  November,  that  the  l.-:vds  Commissioners  of 
Trade  had  not  received  tue  opinion  I  had  written  to  the 
qmrc  sent  me  upon  the  extract  of  Lord  Galloway's  let- 
ter, which,  you  will  perceive,  has  becii  wrote  eve*!' since 
the  2iUh  of  October,  but  was  mislaid  among  my  papers, 
and  forgot  t..  be  sent  ;  but  1  hope  it  will  come  tijno' 
enough  to  answer  the  purposes  they  want  it  I'or  :  tiierc- 
foro,  with  my  humbh'  service,  1  ik>sire  yoi  will  lay  it 
before  their  Lordships.  Ja^    Mountague. 

Extract  of  a  letter  from  the  Eaid  of  Calloway,  her 
Majesty's  ambassador  extraordinary,  in  Portugal,  b)  tlic 
Earl  of  Sunderland,  dated  at  Lisbon,  the  Gth  of  Au'--uM 

1708,  N.  S.  °     ' 


OF    THE    NATIONAL    COMMERCE.  571 

1  mu^t  acquaint  your  Lordships,  that  tlicre  i,^  lately 
CDiue  into  this  p,.rt,  the  ILipp}-,  llicliard  Knowlos,  mas- 
ter, ironi  La  Rochelle,  laden  with  liarley,  consigned  to  a 
'"icior  here,  ?.Ionsieur  TEvesque:  the  master  first  said  he 
caiiie  from  Dublin,  but  the  entry  has  been  made  from 
the  former  place,  and  he  has  the  C^ieon's  pass  for  Bilboa, 
;ind  at  La  Rochelle  they  have  published  leave  to  em- 
bark corn  for  Portugal,  which  trade,  I  am  apt  to  l^elieve, 
they  design  to  carry  on  l)y  means  of  J]nglish  vessels, 
with  such  passes  for  l)etter  security :  as  I  suppose  such 
passes  are  not  to  l)e  obtained  ^yithout  tlie  owners  giving 
security  in  Englnnd,  it  will  be  very  proper  to  make 
them  answer  for  this  trade,  so  much  tt)  our  prejudice. 

To  the  Lords  Commissioners  of  Trade  and  Planta- 
tions. 

May  it  please  your  Lordships  ; 

I  have  considered  the  extract  of  the  Earl  of  fialloway's 
letter  to  the  Karl  of  Sunderland,  set  tbrth  on  the  other 
side.andauKif  tln'opiuion  that  Richard  Kuowl's. the  mas- 
ter of  the  >bi[)  Happy,  which  voluiitnrily  v.  eut  to  Roch- 
elle fo-  corn  tu-carry  tt)  Lisbon,  is,  in  strictness,  guilty 
of  big  1  tri'ason  by  the  stattite  of  the  ad  and  4tli  of  her 
]ne-ent  Majest^^'s  reign,  and  so  are  all  the  persons  con- 
eerned  in  that  trade,  if  they  arc  subjct  is  to  ilie  Queer  of 
Great  Britniii,  and  go  voluntarily  into  France,  Avithout 
license  from  her  Majesty;  therefore,  il'  this  mischievous 
trade  complained  of  (\ini  ii  otliei'wi^e  be  preveiitcMl,  the 
master  and  mariners,  w  lo  are  her  Majesty's  sulijects, 
may  l)e  seized  as  traitoi's,  ;•  id  tried  for  the  same,  as  per- 
sons guilty  of  foreign  t-  .^soiis  are  tried. 

October 'H!),  17'"'  Jas.  Mountague. 


^fii 


f  ' 


n      1 


572 


OPINIONS    OF    EMINENT    LAWYERS. 


i 


(10.)  Mr.  Fane's  ojnnion  on  the  carriage  of  Canary 
wines  directly  to  the  British  Plantations. 

2hc  Case. — By  the  act  of  parliument,  passed  in  the 
15th  year  of  King  Charles  II.  entitled,  "an  act  for  the 
encouragement  of  trade,"  no  commodity,  of  the  growth, 
production,  or  manufacture  of  Eui  )pe,  can  be  imixrted 
into  any  plantation  belonging  tc  his  Majesty,  in  Asia. 
Africa,  or  America,  but  what  shall  be  .shipped  in  Great 
Britain,  and  in  English-built  shipping,  and  whereof  the 
master  and  three-fourths  of  the  mariners  are  English, 
and  which  shall  be  carried  directly  thence  to  the  said 
plantations,  and  from  no  other  place  whatsoever,  under 
forfeiture  of  ship  and  goods ;  that  by  the  7th  section  of 
the  said  act,  there  is  a  proviso  that  it  shall  be  lawful  to 
ship,  in  ships  navigated  as  aforesaid,  salt  for  the  fishe- 
ries of  New  England  and  Newfoundland,  in  any  part  of 
Europe  ;  and  :n  the  Madeiras,  wines  of  the  growth  there- 
of; and  in  the  Western  Islands  or  Azores,  wines  of  vhc 
growth  of  the  said  islands  ;  and  the  same  to  transport 
into  any  of  the  said  plantations. 

Since  the  passing  of  this  ..  t,  it  has  been  a  custom  to 
export  Canary  wines  directly  from  th  ;  Canaries  to  New 
England,  and  New  York  ;  but  some  doubts  having  arose. 
V'hether  this  exportation  is  consistent  with  the  afore- 
said act  of  parliament,  and  application  having  lately 
been  made  for  liberty  to  export  Canary  win(!s  directlV 
froni  the  said  islands  to  the  other  plantations  ■  Vmeri- 
ca,  quarc,  Avhether,  consistent  Avith  the  afoi  I  law, 
Canary  wines  may  legally  be  imported  into  any  of  the 
plantations  directly  from  the  Canary  Islands  ? 

1  apprehend  thnt  the  Canary  Islands  are  not  esteemed, 
by  books  of  geography,  to  be  a  part  of  Europe,  and,  con- 


OP    THE    NATIONAL    COMMERCE. 


573 


sequently,  the  importation  of  the  wines  directly  to  New- 
York  a.id  New  England,  will  not  be  considered  as  a 
breach  of  the  above  mentioned  act  of  parliament;  be- 
sides, the  long  usage,  in  my  humble  opinion,  will  in 
some  measure,  if  there  should  be  any  doubt  as  to  the  sit- 
uation of  these  islands,  be  a  circumstance  which  will 
have  great  weight  in  the  determination  of  this  matter. 
FSruary  3,  173G-7  Fran.   Fane. 

(11.)  The  opinion  of  ths  Solicitor-General,  iJyre,  on 
granting pa-i-ses  to  ships,  contrary  to  the  act  of  naviga- 
tion. 


Sir: 


Whitehall,  Oct.  26,  1708. 


Her  Majesty  having  referred  to  the  Lords  Commis- 
sioners of  Trade  and  Plantations  a  petition  from  Mr. 
Thomas  Pinder,  praying  her  Majesty's  passes  for  four 
Spanish  ships  to  come  from  the  Spanish  West  Indies  to 
Barbadoes,  to  fetch  negroes  from  thence,  and  their  Lord- 
ships appn:h;.ic.|ing  that  such  pat:sports  and  trade  are 
inconsistei.;  wivh  the  acts  of  navigation,  whereby  no 
goods  or  cui!,m  ■  lities  wlntever  may  l^  imported  into, 
or  exporteu  'juX  of,  any  of  her  Majesty's  plantations  in 
Asia,  Africa,  or  America,  in  ar.y  ^^jnps  or  vessels  but 
such  as  do  tridy  belong  to  the  subjects  of  this  kingdom, 
or  of  L-elami,  kc.  their  Lordships  have,  therefore,  com- 
manded me  to  desire  your  opiniou,  wliether  the  grant- 
ing such  passes  may  be  lawfully  granted  I 

Wm.  Poppi.f,.  jun. 
To  the  Right  Hon.  the  Lords  Conanissiouers  of  Trade 
and  Plantations. 

May  it  please  your  Lordsh' 


"1   •■ 

x} 

.f: 

'"--■  \ 

n  ■ 

1! 

574 


OPINIONS    OP  EMINENT  LAWVKKS. 


In  oljodionce  to  your  Lortlship.s'  eoininnnds,  .-ignificd 
to  Hit'  1)\-  the  letter  lic'ivuntoaiiucxed,  I  have  cuiisidered 
the  matter  Avliieh  your  Lordsliips  have  been  pleased  to 
require  1113- opinion  in;  and  I  humbly  conceive,  and  sub- 
mit it  to  your  Lordships'  .^reat  wisdom,  that  the  grant- 
ing of  tlic  passes  desired  will  be  iUegid,  and  directly  con. 
trary  to  the  act  of  navigation. 

(12.)  J/r.    /uiik'i^  npiiiion  of  t/ie  Aliu/'a  sj/lpa  seizins^ 
w-9vv/.s',  tradiihj  (/.;<ti/isf  J,tn\  in  f'.     /;,if/.^h  I.sJ(ui,h. 

To  the  IJight  IIonoral)le  the  L(>r(!    Connnissioners  for 
Trade  and  Plantations. 

M\-  Lords  ; 

\\\  ol^edienee  to  your  L<^rdship<'  commands,  signified 
to  me  by  Mr.  Hill,  I  have  considered  an  extract  of  a  let- 
ter from  Kol)ert    IJyng.   Km|.   Governor  of  Marbadoes,  to 
your  Lordships  .lat(>.|  tlic    I.'Uhof  May,   1 7  Ml,  and  am 
humbly  of     Minion    that   n..  ^hips  or    vcs-rls,   olUMiding 
against   the   -r\  ..nd  acts  of  trade,  <an  b,-  sci/cd   bv   his 
Majesty's   ships  of  war.   witlnu   l!       linuts  m|    any  p(.rt 
within  the  territories  t)l  the  iv-pcti  vr  ( ioveruor-^  ..f  liis 
■Majesty's    plantations;  auil    1    think  if  any  Mich    power 
■should   be  att(  inpted   by  the  coiinuaudcr^    ofhiOI.ijes- 
ty's  shi|).s,  the  ollie,.rs  of  the  custom    wdl  be  very  well 
ju~litied  in  gom..  on  board  -iieh  -hip  or  vessel  so  seized, 
and    bringing  <mi  .v|i,,ie  any    prohibited   goo,!-,   or   goods 
'"'■  ^^I'i'l'    Ibe  duties   have  not  been    paid;   and  it   i^lhc 
duty  ot'  all  persiuis,  botli  <i\  il  and    inibt.iry.  in  iii^  Maj- 
esty'H  service,  to  b(.  aidm-  and  a-.istiiig  to  the  oHieers 
of  the  cuhtimis,  if  tiiey  arc  so  re(|uiied  t,)  be. 
Aui,iat  15,  mo.  |.„,^    |,-,^.„._ 


OF    THE    NATIONAL    COMMERCE. 


575 


(l.">.)  2he  Adrmatc-GniHal  Sir  John  Cooke's,  nj,  mi  oh, 
on  the  <'arr>jinij  lobuceo  from  Vinjinin,  in  neutral  sA/yw, 
to  I'litnce. 

Sir: 
I  havo  Iteen  out  of  town,  or  you  had  sooner  rccoivc-d 
an  iinswor  to   tlio  y^/o;v  you  proposed  tome  I'rom   the 
Lords  Coiiinii-ioners  H.;-  Tiido,  which  1  take  to  be  tius, 
viz  : — 

15y  wliat  hiw,  order,  or  instruetiou,  Kniilish  merchants 
are  disallowed  to  send  j;oods  (not  contra))and  and  ex- 
pressly prohiluted)  in  neutral  ships  from  England,  to 
any  place  in  enmity  with  her  >hijesty'? 

I  conceive  that  the  laws  oi  war  and  of  nations  do  pro- 
hibit such  tradi'i  and  such  ])rohii  lion  seems  i)e  be  con- 
tained or  implied  in  her  >Iajesty's  dechiration  of  war, 
dated  the  4th  of  May,  i7<)2,  in  the  "Words-  '•  Wehmce- 
lorth  strictly  ioriiid  ail  oiu-  subjects  to  hold  aiiv  corres- 

poiidence   or   ( unnnication    uith    France  or   Spain,  or 

their  sul)jects;'  nevertheless  (jie  (,)ueen  may.  liv  con- 
traiy  decl.irations  am!  in  iiiictions.  allow  such  ti;i('c  so 
ns  tln>  same  shall  not  be  interrupt<d  bvan\  En-'  iiis 

of  war,  or  privateers,  as  I  in  Majesty  was  plea,>  ,.,  >lo 
in  respect  to  Spain  by  her  iiistiu'  lioi^  beai'inu;  tlai.-  the 
-!'tli  of  .lauiiar;,,  ITIM  whi.  b,  1  think,  uisin  time 
pi-ecedeiit  to  the  pa-Mu--  of  the  bill  to  llic  >,i:ne  eO'ec  i 
however,  1  conceive  thai  miless  the  Stalc--(;ciirral  can 
lie  broiiLiht  to  consent  to  such  liadc,  the^oods  so  sen! 
will  lie  lialilc  t<i  their  seizure  and  con(i-,cation,  ac(>ordin<'- 
to  the  laws  of  nations,  as  the  ■  ll'e<'ts  of  their  sub|ect,s 
were  here, notwithstanding'  the  pi-rmis-ion  they  had  from 
the  Statcs-fienonvl,  till  lier  Majesty  was  pleased  to  allow 
tlHToof.  .1.  Cooke. 

Doctor^"  {  omnioiif",  April  U,  1700. 


I  i 


576 


OPINIONS  OF  EMINENT  LAWYERS. 


(14.)  'Jhr  opiiHO)i  ,,/  the  Atlomctj-Orun-aJ,  Yorle,  on 
the  (•■ommcnremevt  of  (hides  iij)on  Inqwrtalion. 

Ca-se.—Kw  act  passed  the  12tli  of  May,  1720,  that  li- 
quors imported  after  the  Kith  of  June  shovdd  pay  three 
shiHinrrs  ihity.— A  ship  arrived  on  tlie  coast  the  8th  of 
June,  and  anchored  in  port  the  lOlh  of  June.  Is  the 
rum  liable  to  duty  ? 

The  j^eneral  rule  is  that  duties  laid  upon  goods  im- 
ported hccomedue  instantly  upon  the  importation  there- 
of; a-vl  such  imi»(.rtati.)n  is  always  accounted  from  the 
time  of  the  .shipV  coniiuii  within  the  liu  its  of  the  port, 
with  intent  to  lay  the  goo.ls  on  land  :■  therefore,  I  am 
of  opinion  that  if  the  i)lace  in  Ra]ipahannock  river,  at 
which  the  ship  in  (piestion  wa<  moored  or  at  anchor  the 
Kith  of  Jun(vwas  within  the  limits  of  the  port,  then  the 
rum  ■  not  lial.lc  I,,  the  duty ;  fo-  the  duty  not  couunenc- 
ini,'  till  fn.m  ,Mid  aft<>r  tlic  loth  .,f  June,  there  wa.s  :0 
such  dut_\   in  being  at  the  tinu'  of  tliis  importation 

^^'''''   -   ''-*'  P.    Yo«KK. 

(lo  )  '/'i<  oj.hiion  ut'  til,'  Afti>n>(>/  <linl  Snliritor-(hn- 
eral,  K,  ,„p  ,n>,/  S,n,th,  „t  .W  >r  Y,.rk,  <>n  tlu-  ,/i.shihii(im 
of/orfcUiires,  rnnur  ihi  acts  of  trade. 

Kouniey.  at  Halifax,   Dee.  H,  1763 
Sir; 

A8  hJH  Majesty  lia<  been  gia.'i.,usly  ph>a<,d  to  be-tou 
on  me  a  .piarhi-  of  Mir  uioicty  ^'nuitc.l  hiiu  by  i,et  of  par- 
lifti  ont.  of  all  s.  /luv-  made  by  sea  olli.-ers,  ar.l  coud.'mu- 
cd  in  your  court  of  admiialty,  I  hrnby  ..pply  to  vou  tor 
the  samr  :  and  if  I  may  :>(•  in.lul-cl  m  a  ftu-ther  recpiest, 
I  pray  the  favor  o|"  ynu  t(.  .-ause  the  pro|.er  oflicer  of 
^•uur  court  to  give  m^   some  acrc.unt  of  yoin  proceedings 


OF  THE  XATIOXAL    COMMKRCE. 


or 


with  rt'Siii'tl  to  -'uii  seizih  .-s,  for  we  have  stranjijo  accounts 


lero 


of  Cli 


uiu- Iroiii  qoveruors.  causes  jjrejudgetl,  and  do 


tcrniined  he  lore  trial,  and  of  an  attorney-general  giving 
an  opinion  confessedly  against  the  spirit  and  meaning  of 
an  act  of  parliament  and  the  evidence  of  his  own  nnder- 
sttmdinjr;  in  short,  of  reas 


on  oei.' 


ig  lost  in  law  or  love  of 
)Honey;  hut  I  persuade  myself  that  these  are  only  mis- 
taken rejiorts,  and  that  so  far  as  the  issue  depends  upon 
you,  as  judge,  you  will  duly  considi-r  the  a<'t  oi'  a  Brit- 
ish parliament,  the  King's  proclanialioa  founded  there 
upon,  and  your  own  appointment  from  the  lords  of  ad- 
miralty, who  are  required  hy  the  King  to  cause  his  pleas- 
ure, :  guided  in  the  proclamation,  to  he  duly  complied 


wi 


th. 


COLVILLE. 


The  acts  of  trade,  re.-pecting  the  ])lantatiou -.  gener- 
ally enact,  -That  the  pen'  ''iosand  forfeitures  sued  for 
on  those  acts  in  the  ])lantations,  shall  he  divided  he- 
twcen  the  King,  the  ( ii>vernor.  anil  the  persons  suing  for 
the  same,  each  a  third  '' 

A;  tatute  was  passt-d  in  the  third  year  of  his  Miije-ity's 
reign,  entitled  ''An  act  I'ui  ih.'  further  improvement  of 
his  Majesty  s  rcxcnuc  of  custnms,  iind  tor  tii«  encour- 
agement of  olhccrs  nuUsing  M'i/ures.  and  for  the  preven- 
linu  of  the  clandestine  running  of  goods  Into  any  part  of 
his  Majesty's  dominions." 

Under  this  act.   iuul  hi-^   .\i;i|estv"s  order  in  council  of 


the    1st  dii\'  of  June,    I' 


the  ollici'rs  and  crews  of  his 


Majesty's  shij)sof  war  making  seizures  in  Aiiierici,  claiirt 

the   moiety  ol    the  net   produce  of   iliose  sei/.uri's,   to  he 

divided  among  them  in    the    jiroportions   mentioned    in 

the  said  order  of  council. 
71 


i     ! 


578  OPINIONS    OF    EMINENT    LAWYERS. 

Captain  ILawker  lias  made  a  seizure  of  a  vessel  and 
cargo,  at,  New  YorK,  as  forfeited  on  some  of  the  arts  of 
trade,  which  declare  the  forfeitures  shall  be  divided  in 
thirds,  as  aforesaid. 

_Can  Captain  Hawker,    nnder  the   late  -^ct,   and   (ho 
King's  order  in  council,  demand  the  moietv  Ihv  himsdf 
oflicers,  and  crew?     We  have  perused  tla^  la^e  statute' 
nnd  the  roj  il  order,  and  do  not  observe  any  thin-  in 
that  statute,  vesting  in  the  officers  and  crew  (he  moiety 
of  seizures  made  by  ships  of  war  in  America,  excepting 
the  forfeitures  by  the  last  clause  of  that  act;  nor  any 
virtual  repeal  of   those   laws,   whereby  the   forfeitures 
were  distributable  between  the  Crown,  the  ( Jovernor  and 
the  prosecutor. 

The  moiety  whi.^h  his  Majesty  is  empowere.l  to  pro- 
portionate among  the  officers  and  crew,  is  the  moietv 
mentioned  „<  the  precedent  clauses  in  that  staCte  and 
is  the  share  the  officers  of  the  customs  in  (Irca,  Hrifiin 

are  ondtied  to  by  ,h„  stat.t.,on  s.izures  made  bv  (iK,n 
on  breaches  of  th"  acts  of  (nide  there. 

The   other  .art  uC  .,\\  and   everv  the  ..el.ures   &,-   ,. 
the  statute  expresses  it,  ulneh  his    M.\r.t.   is  ,d.o  ...i, 
powered    to  proportionate  .s  aforcs.id,    u-  Ibink  can  be 
cupstniedto.xtend   no  farther  .ban  to  Hfct   a  divisi.,,, 
'"    ^vbat..v..r  other  >h.....    the  officers  ...d   erew    ...i... 

"m   be  entitled  to,  nnder  the  laws  bv  whi.h  lb.  seizure 
was  made,  which  diffi.r  in  England  and  th..  p|..,„n.,ions 
nnd  n>ay,  pe,  hap.s,  empower  the  Crown  to  pr,  |.,.rtionate' 
among  them  any  part  of  his  Majesi.  s  share     we  con 
coivc.  that  wlu.n.ver  seizures  are  n>ade  bv  his  .Majctv's 

sh.p«  of  war.  the  officers  and  crew  beconu.  enthled,  upon 
prosecution,  to  the  .hare«  of  the  officers  of  the  .usto    . 


f=¥W 


OF  THE  NATIONAL  COMMERCE. 


579 


and  upon  the  whole,  thereibre,  are  of  opinion,  that  this 
lu<o  act  cannot  w  irrant  a  chxim,  in  America,  to  more 
than  one-third  part  of  these  forfeitures  in  such  cases, 
wiiei-e,  hy  prior  statutes,  the  Crown  and  Governor  are 
each  entitled  to  a  third  ;  and  with  respect  to  the  royal 
order  in  council,  we  presume,  with  submission,  it  will  be 
considered  only  as  declarative  of  the  distribution  of 
those  rights  the  tflicers  and  crews  are  entitled  to  by  the 
act-;  of  trade. 

J.  T.  Kempe. 
N^vernlor  7,  1703.  Wm.  Smith,  jun. 

(Ki.)  Tiir  opiniiii  of  the  Attonieij-trcitrral,  Ltriii.~,  on 
tilt  iinpoiidtiini  of  p((intcd  stonewdrc. 

At  the  court  at  Whitehall,  the  3d  of  March,  1079-80: 
Mrvscnt.  the  Kinj^'s  most  excellent  Majesty  in  council. 

The  afoi'cwiitt<Mi  memorial,  with  reirard  to  the  impor- 
tation of  I'oiciijn  ])ainted  stoneware,  beinj^  this  day  pre- 
cnlcd  to  tiie  board,  with  the  ])a])(M's  annexed,  it  is  or- 
■Urcil  tlu.t  IJK'  Lords  of  the  Counnittee  for  Trade  do  ex- 
;:mine  I  lie  same,  and  report  their  opinions,  what  may  be 
lit  for  his  Majesty  to  do  therein. 

Tiios.  Dolman. 

lu'ft'rciir(>  therein,  touchiuL;;  earthenware.  Ileport  of 
.Mr.  .\tiiii  ncy-(  icneral  al>out  earthenware. 

May  it  please  your  Ijordships; 

lis  the  .slatutt>  of  tin-  ',\\\  Kdward  IV.  cap.  I  llic  briii;;-- 
iiii:  of  any  painted  wares  into  this  kinj^dom  is  prohibit- 
ed: whether  the  eai't hcuu.ir  ■>  in  <[iicstion  be  painteiK-i 
not  i-^  matter  of  faet,  and,  properly,  by  the  law-  (.if  this 
kni;;dom,  tiialile  by  .i  jiiiy  ;  tlierefore,  whether  your 
liordsliips  will  think  fit  to  have  the  matter  determined 


580 


OPINIONS   OF  EMINENT  LAWYEHS. 


« 


I 


bv  a  oortificate  of  the  officers  of  the  phice,  wJiose  intent 
It  Ls  to  import  them,  or  refer  them  to  a  trial  hy  a  jm-v 
of  this  kingdom,  whoso  intent  it  is  to  obstruct  the  im- 
portation,  I  most  humbly  submit. 

Apn7  19,li}^0.  '  Ckeswell  T^evin^,. 

in.      (1.)    2/ic  ojjlnioii  nf  Sir   Wii/lan'  Joiu.'i,  ,Sir  F. 

mnmn,jton,and  Mr.  J.  K\ng,  in    \(\li\.  ,„:   the  s!-Jt»tc 

2\.st  Jamtii,  of  m')nn2>:>/ie.;  hmr  f.-tr  u>,  arfi;n  woiiL'  lir, 

in  the  Barha^hrs  r.urr<,  far  ...  hin:^  <jomU  nf  the  Afrkaa 

An  action  is  brou-ht  against  B.  in  the  BarbaJoes,  up- 
on^  the  statute  of  the  I'lst  .Tac.  cap.  ;j.  (,f  monopolies,  (or 
seizing  certain  g-uuls  importe.l  thither  from  GMinoa, 
(^^•ntrary  to  the  imruniilies  and  privileges  granted  by 
his  Miijc^ly  to  the  r..v:il  African  conipauy. 

'fr.r<    i.— Whethei',  in  this  case,  the  action  lies  upon 
that  statute  for  trel»le  damages,  <M.nsidering  the  proviso 
that  exempts  all  charters  granted  to  any  companies  or 
societies,  erected  for  the  maintenance  or  ordering  of  any 
trade  or  merchandize  out  of  that  statute  >.    I  am  of  opin- 
ion, tiiat  this  proviso  ,!o(h  .-veiupt  auy  .'harter.  ,i:rauled 
to  any  ^oeiety  of  mer.'hant^.  lor  tho  niainlcnauce  or  or- 
dering .,f  tnuK,  froiu   heing  within    the    penalty  ,,f  (he 
statute;    fur  that   proviso,  as   it   d..tli   not  couhrm  su.di 
chnrl.M's.  hut  h'aves  th<>m    to  .fand  and  fdl  hv   (he  .mui- 
^^^'^^^    ''w,  so  it    .loth    uut  Inlli..f   any    nrw    j-e'iialh-  npnn 
(hem:   wh.'n-fonv    I    think,   au  action   will  not   lie  up,ai 
this  .st.atut.^   for  trel,!,.  .laungcs  for  doing  any  thing  m 
exccutiMii  ot'surh  charter. 

Qnare  2;— Tf  any  a. •(inn  lie^  upon  the  statute,  can  if 
bohrou-ht  in  ,iny  other  <>our(s  lu.t  the  kin-'s  l.rn.'h. 
common  pleas,  or  .•\ch.Mp,or  at  Westmin^t.-r,  (li..Matu(e 


OK  THE  NATIONAL  COMMERCE. 


581 


soemin^  to  restrain  the  subject  to  those  courts?  It  can- 
not Ik!  brought  within  any  of  the  inferior  courts  within 
Eno-huid  ;  but  if  the  hiw  of  the  Barljadoes  doth  enact  oU 
statutes  nuule  in  Eughmd  to  be  of  force  there,  (for  a  stat- 
ute made  in  Enghind  doth  not  of  itself  extend  to  any  of 
the  foreiii-n  phmtations,  unless  the  statute  doth  particu- 
larly naniL"  tluin.)  then  an  action  will  lie  within  their 
courts  tnere  upon  a  statute  made  here,  though  confmed 
to  the  ])rincipal  coiu-ts  here;  but,  upon  the  ans 


to  the  lirst 


wer  given 


OH'i-n. 


1  th 


ink  no  action  will  lie  upon  this 


atute,  for  putting  in  execution  this  charter,  but  it  will 


stand 


or  fall  bv  the  common  1; 


i\v 


'jri'iu'iti 


Jo,  lilTti. 


W.M.   J  one; 


The  second  q>,..  rr  is  out  oT  the  c;ise,  l)y  the  resolution 
'  the  first ;  l,n-  if  this  statute,  as  to  the  recovery  of  treble 
'xtci'.ds  n;>t  to  the  royal  African  company,  ('as 
1  conceive  it  doth  not,)  then  no  action  can  be  bn^ught 
in  Barbad'ics  or  anv  where  else. 


il,ini;i<^e 


\(ir<  iih'jcf  !(»,   1117(1 


F.   U'i.\.m\(;to.\. 


I  cnncei\e  no  act  ion  lies  \i[)nn  this  statute  against  the 
company,  or  ah\  agent  of  theirs,  for  any  matter  done  iix 
[iinsnancc  of  th  barter. 

Xiiiuiithij'  1(1.  1(17(1.  J    K 


I.\G. 


(2.)    -Ih,  u) 


iiiinii    II 


f  the  All>nicij-(r/_itrr<//,  >S 


tiin/n-   III 


I'iSij  >■  iii(-<  iiu'ihj  iiitirlnpcn 

l!fp  >rt   nf  (li,>   .\ttorne\-(!eneral 


conccrnuiir  ui 


terlo- 


1CI' 


ill  obi'diciice  to  your  Majcstv'sord 
i|  Nti\ ciiilicr,  wliei('b\   1  jnii 


er  in  cduncii,  ol 


the 


Kith 


iT   tii    I  he    |it''  It  HUl   ( 


'I'tlic   Kavt   I 


<'oinin;iiide(l  to  coiisid- 
n>li:i  cunnia.nw  and  to  le- 


poit  how  ill,,  law   -.(.inds.aud  whet 


tion   111 


lay  be  granted 


as  IS  (icsircd 


icr  such  a  proidama- 
I    huinblv  conceive, 


.  t 


582 


OPINIONS  OF  EMINENT  LAWYERS. 


I 


tl'iit,  bv  li  w.  youv  Maj'estv's  .subjects  ou.dit  not  to  trade 
or  tnillic  witli  any  iulidel  comitr\-,  not  in  amity    .vith 
yjur  Majesty,  without  your  licon;^o  ;  and  that  your  Maj- 
esty may  signify  your  pleasure  therein,  and  require  your 
subjects'  obedience  thereunto,  by  your  royal  prochima- 
tion.     I  am  likewise  of  opinion,  that  the  license  given 
to  the  eomi)any   to  trade  into  India,  with  a  prohibition 
to  others,  is  good  in  law,  and  the  penalties  of  forfeitures 
of  goods  may  therein  run  upon  any  g(jods  which  shall 
be  seized  within  the  limits  of  the  company's  charter,  as 
for  breach  of  a  lo-al  law  made  by  your  ?'Iaic.st\-,  which, 
I  conceive,  y  ,,//•  Maj,.s(,f  .nay  muhe  in  th':  forciijii  plnn- 
tatiom  (IikI  cil >nir<  inhabited  l>y  your  Majesty's  subjects 
by  your  permission.      I  am  of  opinion,  that  your  Majes- 
ty may  issue  ,-;rdi  proclamalion  as  is  desired. 

j\ur.   1(1,   1(,S|.  ,  i>     Sawvkr. 

(3.)  TIr  (,j,:itlu,j  nf  lj,r  .  1  ftoriinj  ,(!„/  .So/irifo,-( rciinyd, 
Ilirciiijf  ir.ul  M ,v.ntr:„,.  uii  //,  chriu<ns  tffcvlal,  h,j  tlu' 
uiii  t)i.  ill  Ir.ti/' . 

To  iW  Right  lion.  Si(bK>v,  Earl  of  (iodolphin,  Lord 
Iligii  Tr(\isurer  ol'cJi-eat  Britain. 

May  it  plca-^e  your  Lord^hij)  ; 

In  obi'(li(Mic(>  to  her  Majesty's  order  in  council,  of  the 
2S(h  oi'.)ui\  list,  u|)Mn  l!ie  petition  of  divers  merchants 
and  otlicrs  her  .\lajcsl_\s  subjects  of  Scotland,  who  had, 
since  the  1st  da\  of  .May  ia>t.  imi)oit.(i  or  lirouglit  from 
that  put  of  t; -cat  Hritaiii  into  the  port  of  Loudon,  as 
Weil  divers  pj-obibitcd  and  inicustomablc  goods,  as  divers 
(•ii>tomabi('  good-,  all  u  liich  had  been  seized  as  forfeited, 
by  wiiicii  oriier  we  were  e(.unnaniled  to  call  tlie  parties 
concerned  l»efore  us,  and  endeavor  to  settle  such  a  method 


t  i 


OF  THE  NATIONAL  COMMERCE. 


583 


of  proceeding  as  inijrht  be  most  expeditious  for  l)rinjring 
the  matter  aforesaid  to  an  easy  and  proper  determina- 
tion:  we  humbly  certify  your  Lordsnip,  that  we  have 
several  times,  in  the  presence  of  Sir  David  Nairne,  heard 
Colonel  Graham,  Mr.  Coole,  Mr.  Larrinrrton,  and  Mr. 
Stewar  ,  (who  took  upon  them  to  treat  with  us  on  the 
behalf  of  all  persons  concerned  in  the  said  petition,)  as 
to  the  several  matters  contained  in  the  said  petition; 
and  WG  have,  with  their  consent,  agreed  upon  and  set- 
tled the  following  method  of  proceeding,  as  the  most  ex- 
peditious and  easy  for  bringing  the  matter  in  question 
to  a  proper  and  judicial  determination. 

1st.  That  oath  be  made,  in  writing,  that  the  goods 
and  merchandize  in  question  were  imported  into  Scot- 
land before  the  union,  on  the  sole  risk  and  account  of 
her  Majesty's  subjects  of  Scotland;  and  that  no  English- 
man, or  alien,  was  any  Avays  concerned  or  interested  in 
Mch  goods  or  merchandizes;  and  that  sucli  goods  and 
merchandizes  paid  the  duties  in  Scotland,  due  and  pay- 
nl)le  ihere,  at  the  time  of  the  inqioitation  thereof,  and 
were  afterwards  brought  into  the  ])ort  of  London,  mi  the 
sole  risk  and  account  of  such  snl)iects  of  Scotland. 

lid.  That  an  exact  account  shall  be  taken  by  such  per- 
sons as  the  conunissioners  of  her  Majestys  customs  shall 
appoint,  in  the  presence  of  tlie  i-roprietoi-s  of  such  goods, 
or  their  factors,  or  agents,  of  the  (piality  of  all  such  goods 
and  merchandize  now  under  seizure,  touching  which  any 
Scotch  proprietor  shall  desire  the  so'-mvo  to  bedi.scharg- 
ed;  and  that  a  roa.sonable  and  moderate  estimate  be  ta- 
ken of  the  value  of  such  goods. 

"  I.  That  some  merchant,  or  (ither  porsoii,  of  sulficient 
ability  to  answer  the  value  in  a  drcewrunt,  inhabiting  and 
settled   within   the  city  of  London,  shall   take  up  the 


.  1 
1   -H 


I   f^t 


i  I 


584 


OPINIONS  OF  EMINENT  LAnVERS. 


M\ 


t 


said  goods,  and,  hy  writing  under  his  liand.  admit  the 
quantity  of  such  goods  and  niorchandizos  to  have  come 
to  hi'?  hands  and  possession,  and  shall  likewise  admit  the 
v:^ine  thereof  according  to  the  said  estimate,  to  the  end 
the  party  taking  up  sucli  go  ds,  aiu'  admitting  tlie  (pian- 
tity  and  value  thereof  as  aforesa'd,  mriv  be  charued  for 
the  same  by  an  information,  on  a  (/cveiierrmf,  in  tlie  court 
of  exchequer,  il  l)y  virtue  of  tiie  articles  of  union,  such 
prohibited  a:ul  u  ..istomable  goods,  imported  into  Scot- 
land before  the  union,  cannot  ])e  afterwards  brought  in- 
to any  port  of  (a-eat  Britain  without  forfeiture;  or  if 
customable  goods,  so  imported  into  Scotland  as  afore- 
said, cannot  be  afterwards  imported  o,-  brought  into  any 
part  of  Great  Britain,  without  payment  of  the  English 
duties. 

4tl..  In  such  writing,  the  party  signifving  tlie  same 
shall  jikewise  agree  to  appear  to  aiiv  iufonuiition  of  a 
(/erriKiKiif,  which  shall  be  brouglit  in  tlie  name  o^  *''c 
attorney-general,  or  any  informer  as  the  atlornev  sh.ill 
direct,  and  plead  to  any  such  iuli)rmati(m  the  iirst  week 
in  nex^  term,  or  as  soon  after  as  the  attorney-general 
shall  think  (it,  so  as  the  merit  of  the  case  mav  be  then, 
upon  such  trial,  Juilicially  determined  ;  and  (hat  such 
agreements,  as  to  the  party's  admission  of  (he  (|uau(ities 
and  values,  as  af  )resaid,  and  as  to  the  jiartv's  consent  to 
appear,  plead,  and  take  notic^  of  trial  as  al()resaid,  be 
made  an  order  of  ♦lie  court  of  exchequer,  the  first  day 
of  next  term;  the  attorney-general  consenting  by  siicli 
order,  to  admit  the  importation  into  Scotland  bel'ore  t'le 
said  1st  day  of  .May,  and  also  to  admit  the  Scotch  proj:- 
orty. 

5th.  That  su-jh  o;',th  be  made,   and  an  account  taken 
of  the  quantity  of  such  goods,  and  an  estimate  made  of 


OF  THE  National  commerce. 


585 


the  value  thereof,  and  such  goods  beina;  taken  up  by- 
some  such  responsible  person  as  aforesaid,  who  shall 
sign  such  writing,  as  is  hereinbefore  contained,  the  seiz- 
ures of  the  said  goods  may  be  instantly  discharged,  the 
ofticers  who  seized  the  same  consenting  thereunto,  if 
your  Lordship  shall  be  pleased  to  approve  thereof. 
August  18,  1707.  Sim.  Harcourt. 

Jas.  Mou.ntague. 

(4.)  2 /le  opinion  nf  the  Solicitor-General,  on  the  Amer- 
ican act,  (.stah/i-sliinr/  the  co.sc  of  priz'.  du  ing  the  war  of 
Queen  Anne. 

By  an  act,  the  Gth  Anna  Regina,  entitled,  "an  act  for 
the  encourarjementof +'.0  trade  to  America,"  by  the  sec- 
ond clause,  it  is  enacted  that  the  ting  otficers,  command- 
ers, and  other  olheers  and  seamen  of  every  such  ship  or 
vessel  of  wai ,  liall  have  the  sole  interest  and  property 
of,  and  in,  all  uid  every  ship,  vessel,  goods,  and  mer- 
'•handizo,  Ihey  shall  take  in  any  part  of  America,  (being 
iirst  adjudged  lawiiii  prize  in  any  of  her  Maiesty's  courts 
af  admiralty,  and  subject  to  '  >  customs  and  duties  pay- 
able t  )  her  Majesty,  as  if  .  ame  had  been  first  im- 
ported to  any  part  of  Great  Britain,  and  from  thence  ex- 
ported tor,  and  in  respect  of,  all  such  goods  and  merchan- 
dize,) to  be  divided  in  such  proportions,  and  after  such 
manner,  as  her  Majesty,  her  heirs,  and  successors,  shall 
think  fit  to  order  and  direct. 

^'he  next  clause  lays  the  same  duties  upon  prizes  tak- 
en by  privateers. 

The  Case. — One        her  Majesty's  ships  of  war,  or  a 
privateer,  takes  a  prize  in  America,  and  condemns  her  in 
oneof  herM.     sty's  courts  of  admircUy,  and  the  said  prize 
is  carried  into  one  of  her  Majesty's  ports  of  America. 
75 


H ' : 


t   I 


58G 


OPINIONS    OF  EMINENT    LAWYERS. 


in 


Qk^ic  1. — What  (luties  the  captors  ai  o  to  pav  in  this 
case,  whether  duty  payal)le,  as  if  the  g  )i)ds  in  question 
were  hvnded  in  Eiij^land,  or  whether  so  much  only  as 
would  bo  left  in  England,  if  the  same  Avere  exported 
from  hence  into  jmrt.s  beyond  the  seas? 

N-J.f. — That  the  difference  of  the  duties  will  plainly 
appear  by  the  annexed  i)aper. 

Ans}:'cr. — The  goods  that  are  tii.is  taken  in  America, 
and  carried  into  any  of  the  ports  there,   I  take  to  be 
chargeable  with  such  duties  as  would  be  left  in  England 
if  the  same  had  been  exported  hence  after  an  impnr'  »- 
tion  hither. 

Qi((/ri\ — Another  question  doth  arise  upon  thi.Hclaitse, 
whether  the  duty  that  is  to  le  taken,  is  to  be  the  nrize 
duty,  or  the  duty  as  if  the  goods  were  imported  by  way 
of  merchandize  1 

Annver. — Goods  thus  taken  in  America  must  Ije  looked 
upon  as  prize  goods,  and  cannot  be  said  to  be  imported 
by  the  captors  by  way  of  merchandize:  therefore,  I  do 
think,  the  prize  duty  is  to  be  taken. 

Maij  25,  1708.  J.  Me   ntague, 

(5.)  Hit'  opinion  of  the  S )Hdlor-Gc  'CnJ,  Thiirv^nn,  re- 
lating t)  a  duty  laid,  in  Carol/  a,  np >n  Biitish  commnd' 
ities. 

Sir: 

In  obedience  to  the  cor.iraards  of  the  Lords  Commis- 
sioners for  Trade  ana  Plantations,  signified  by  yours  of 
tlie  2Gth  of  March  last,  I  iuive  considered  Colonel  Ilhett'a 
letter  ;  and  as  the  law  inentioned  by  him,  laying  a  duty 
of  ten  pounds  per  cent,  upon  British  goods,  seem"  very 
extravagant,  and  may  be  rei  sonably  supposed  to  be  at- 
tiuded   with  the  consequences  he  mentionr.   I  think  it 


OK    THE    NATIONAL    COMMERCE. 


687 


may  bo  truly  said  not  to  be  consonant  to  reason,  and  ag 
this  duty  is  so  heavy,  it  may  prove  to  be  sucli  a  burthen 
to  ti-ade,  as  to  be  in  effect  a  prohibition  (..  it  to  the  Brit- 
ish subjects,  which  is  by  no  means  agreeable  to  the  hiws 
of  Britain  ;  I  therefore  humbly  apprehend  that  th^-  -)o\v- 
er  of  malving  laws,  by  the  charter  to  the  proprietors,  is. 
in  this  instance,  excoed-d.  It  would  be  too  tedious  and 
too  expensive  for  every  particnlar  trader  to  contest  the 
^)aymentof  the  duty  upon  the  supposed  invalidity  of  the 
act,  asbeingunreasonal)le,ai.,:  if  determined  against  them 
there,  to  appeal  to  the  King  in  council ;  but  if  the  mcv- 
chants  fnid  themselves  aggrieved,  I  presume  they  will 
complain,  and  then,  upon  a  petition  to  the  King,  the 
proprietors  w^ll  be  heard,  and  if  they  do  not  consent  to 
remedy  the  grievances,  a  prosecution  maybe  ordered 
against  them  and  their  charter,  nor  will  the  complaint 
be  improper  in  parliament. 

April  5,  1718.  Wm.  Thompson. 

(0.)   2/te  sai.ielawyer'.s  opinion  on  chc^^sing  t  -.rcasurer 
of  the  factory  at  Lis')on. 

Sir ; 

In  obedience  to  the  commands  of  the  Lords  Commis- 
sioners of  Trade  and  Plantations,  signified  by  yours  of 
the  2Gth  of  this  iuotant,  March,  I  have  considered  the 
patent  to  the  consul,  and  the  powers  to  choose  a  treasu- 
rer;  and  I  humbly  conceive  that,  if  any  of  the  mer- 
chants there  refuse  such  an  office,  or  any  other  put  upon 
him  by  the  consul  and  factory  there,  the  consul  may  re- 
fu.se  to  be  assisting  to  th:it  merchant,  or  to  protect  his 
ettects,  or  to  let  him  have  ain'  of  the  privileges  which 
he  allows  to  other  merchants  there  ;  but  there  is  no 
method  prescribed  in  his  patenl,  to  inflict  penalties,  or 


i 


588 


OPINIONS     OF     EMINENl     LAWVERS. 


r 


to  levy  them,  for  such  refusal  of  offices,  though  they  are 
necessary  to  support  the  society  ;  and,  therefore,  I  think 
the  consul's  power  defective  in  this  particular. 

March  30,  1718.  Wm.  Thomson. 

(7.)  I  he  opinion  ufiheAWmiey-Gmcml,  l{,jdcr,onthe 
ca.9€  of  distn-.9mf  h'n^j/i.^'t  seamen  ctt  Cadi:. 

To  lii.s  Grace  the  Duke  of  Bedford. 

May  it  please  your  Grace. 
la  obedience  to  your  (irace's  commatKl.,  signified  to 
mehyMr.   Al.hvorth  s  k-tter  of  the  Cth  instant,    repre- 
senting that  the  innnbcr  uf  ships  cast  awa v  in  the  nei.d.- 
borhood  of  (Jadiz, -having  occasioned  so  nianv  sailors  to 
apply   to  Mr.  Cons-,1  Colehrook    for  relief,  tlmt   the  ,ii.- 
burson>ents  hs  has  found  it  his  duty  to  make,  to  prevent 
their  perishing,  or  being  oblige,!  to  enter  into  the  ser- 
vice ot  S,>ain,  has  so  tar  exceeded  what  he  has  been  able 
to  colh.ct  ol   (he  contribution  settled,  hy  the  a,.t  of  ,,ar- 
Ixan.ent,  in  17n.i,  that  he  has  thought  himself  obliged  to 
•"■-vavery   irregular  b,ll  on  your  Grace  f^.r  lo'i;)  dul- 
'ars,  loput  Inn.  u.acondihnnfogoonwahthisneces- 
^Hrvexpenscalso   in.do.ing  the  letters  Iron,  the  eouMd 
"l"'-.  t  us   oeeasion,  and  desiring  n.y  cr,,i„i..,.    „,„,„    ^.^^ 

•"H  iHKis  he  UK,  V  n.ost  legally  and  pn.perly  pursue,  in  or- 

'^''''  *""'''"'"""•  l'^'>'"""t  of  the  dutv  settled  bv  parli. 

7"'    ''•'■"'"■'•^■"•■'•'"    "'-list. -osseu  seamen,  and.  ..ee 

<'"""">"'.V  appropriated  to  th.t  use  for  wh.rh  i,  u...  ,„ 
tcMuled       I    have    cu.sid.Te.l    th..     ,.,i.,    („,,,„„,,     ,^,,,^,_,^ 

(winch  are  herewith  nlurn.   1),  and  Ida^sise  reviewci  a 

rq.urtlu,ade  upo„  a  lormer  reference  ..la t,.  tho 

ffttne  matter,  in  vour  (irace's  letter  in  (i...,.h,...    p  u,    :„ 
>vhich  I  have  «Uaed,  that  1  had  considered   the  inatte'n 


OF    THE    NATIOXAr.    COAlMF.RCE, 

contained  in  the   said  letter,  and  find   two  thi 
plained  of:  on.e,  tiie  unequal  distribution  of  th 
collected  pursuant  to   the  act  of  the  9th  of  h 
Majesty,  chap.  2-j:  the  other,  t! 


589 

ns^s  com- 
nioney, 
present 


IS 


10  evasion  of  it.  by  get- 
ting clearances  of  >Iii[)s  without  piivnient  of  the  dutv. 


As  tli 


is  is  a  law  to  1 


te  earned  iiilo  cva'cntii'-i  in  a  for- 
oininions,  I  do 


eign  country,  not  within  his  Majesty's  d 
not  sec  any  method  that  can  be  tidvt'u  liere  I 
in^s  inlaw,  to  reuiedy  either  of  tlie  ,Ln-iev;in(Hw. 
As  to  the  first,  it 


>y  proceed 


t\'  III  the  (1 


)uti(> 


seeming  to  be  tb-^  clT.'rt  of  partialis 
•ho   iiave  the  nowoi-  of  (listril)ution, 

can  be   regnlaied    only  by  iutfiKMiniiii-   them  to  act   in  a 

more   iipi-ight    impartial    mannci- 

chants  to  choose  other  depulies,  wl 

the  execution  of  tlie  trusi 


or  I'jiLrMiiinir  the  mer- 


II >  wil 


more  just  in 


As  to   the  latt 


er 


tl 


K'  (•hMraii''i><  from  the 


in  the  power  of   the  Si 


.rt  I 


)einfr 


;iiiish  ollicers,   it  d 


)es  not  appear 


to  me  what  nu'thod  can  be  usod  to  prevent  the  captains 
lips  from  havin--  them  before  they  p.iy  the  dues  di- 


rected  bv    tl 


le  act,    but   by  interposition  ol"  (1 


le  com-t  of 


pain,  in  directinir  and  obli    iii(r   d,, 


them   to   the  Kii'disl 


ir  otlieers  to  ileliv 


er 


1  consul,  in  order  to  be  detained   by 
him  till  the  iici  is  complied  with. 

As   to    wh;it    is  proposed  of  directing  tlie  e.iptains  of 
ships  to  deiiv.r  their  Medifrranean  passes  to  the  consul 


security  for   pavii.g    the  diuw^  |    ,1,,   ,„,, 


know   how 


siieli    an    onier  e.ni 


he    enlorcei 


Ullle 


>v   iiiakiiiir  it  a 


'oudition   Ol,  which  the  validilv  of  tho>.-  passc-^  shall  d, 
p<'i).I,  that  thev  >hall  I 


le  so   (leliverei 


ami  111 


L'red. 


re-(ieli\- 


without  conloiiiiing  to  the  act.  of 


W  inch    t 


pul,  or  sonu»  deputy  for  him.  t 


le   coii- 


wluif  mav  be  M 


I  III. live  eildoi>e|llciits;    but 


K'  CI  III  -ei|llence  o|-   i| 


H'onveiiieiK 


ijig  the  force  of  the  nasses  to  d( 


'f  mak- 


I'eni!   OK  this,  1  am  not 


iNi 


I 


»-  I 


J 


590 


OPINIONS    OF  EMINENT  LAWYERS. 


able   to  judge;  and,  perhaps,  it  may  1 

the  opinion  of  the  hoard  of  trade  upon  the  whole,  what 


0  proper  i,o  take 


may  he  fittest  to  he  dc^ne,  t 
in  0  ini-.tter  in  which  the  trad 


o  remedy  tlie  inconveniences 
e  IS  so  much  concei 


3rned. 


Fdn 


'»  uavii,  8,  17")0. 


(8.)    Mr.    /• 


D.  R 


V.VDER. 


am 


opiiiioit  o:i  lltcpnrilvuesof  t'lc  li 


IIS- 


6ia  ccmjMiiu/.  an-rijiiKj  on  a  trade  to  An/itni 


a. 


To  the  Riirht  II 


Trade  and  Plantation^ 


onorahle  the  Lords  Commissioners  for 


Mv  Lor<l< 


I 


n  oi 


)edience  to  your  Lordships'  commands,  signified 
to  me  l.y  Mr.  Topple,  inclosing  extract  from  the  charter 
of  the  Russia  company,  and  desiring  my  opinion,  wheth- 


er lli 


e  i>rivilc-vv  tiicrciu    grants  to  the  said 


company, 


partirularly  tho-c  of  im]>orling  through  lUi.ssia  the  pro- 
duce   and    mauufaclurcs   of  Armenia    ma  {or  or    i 


uinor, 


.cdia,     ,  l\  icani.i,    Tcrsia,  or  the  ci)untrie-(  1.  trdering  on 
io   ^till  suhsi.vt,  notwithstaiuiiug   the 


the  (,'aspiaii   Sea, 

acts  of  na\ igat ion 

C(Uhpany,  coiilinncd  l,y  acts  of  parliament  suh.se(juent  to 


aiHl 


the 


alter    of  tin 


t  liid 


have   considcicd  the 


-cvera 


1  cl 


lar- 


the  Uiissia  <'liaitcr 

ter-;,    and    the   an    o|'  navigation  ;  and  1 

opinion,    that  the  privilrgcs  granted  to  the  Russia  ci)in- 

•paiiy.   nf  iiiipnitiiiir    llirom;h     Russia    the    produce    and 


am   liuml)lvot 


iiiii  iiulai 


tlU'i 


Ilia. 


1' 


-f  .\ 
tl 


niieiiia.  major  or  minor.  Media    Ilvrca- 


ei-Ma,  or  t lie   coiniti  II 


)orili 


I  iug  (in    tile  Cas] 


iiaii 


sea,  cea.scd  \i\  the  act  of  iia\  igation,  liy  which  all  good,- 
of  I'oreign  growth  iiw'  maimlacliire  arc  prohiliited  under 
severe  penaltie-*  am.    toi  |'eitiire-i,  from  hcin;;  hroiiudit  in- 


to K 


and,  Ireland,  iSjc.  Iroi 


11  any  [ilacc  or  places,  coun- 


try or  countries,  hutoiiiv  Iroui  liio^eof  their  said  growth 
or  manufacture,  or  from  lliost>  ports  where  thcuid  gfxnls 


or  THE  N    no.NAL  Commerce. 


591 


can  only,  or  are^  or  usually  have  been  first  shipped  for 
transportation,  and  Ironi  none  other  places  or  countries; 
this  subsequent  act  of  parliament,  1  think,  therefore,  very 
fully  determines  chese  privileges  ;  but  if  there  could  be 
any  doubt  upon  it,  I  apprehend  the  subsequent  exclusive 
charter  of  the  P^ast  India  company,  confa-med  by  act  of 
parliament,  wherel)y  the  sole  trade  to  th  'se  countries  is 
granted  to  that  company,  entirely  takes  away  all  pre- 
tences to  those  prior  privileges. 

June  17,  1731.  Fran.  Fane. 

(9.)  7//r  opinim  oj  ti,'  Alt>i,iey  and  ^S >Uc'it>r-Gener- 
nl,  Rii'Ur  and  Strange,  on  the  act  of  Georgia,  alGul  t  ade 
with  tlic  Indians. 

To  the  Right  Hon.  the  Lords  Commissioners  for  Trade 
and  Plantations. 

My  Lords  ; 

^^  e  have  consid*  rod  (lie  r/^/rovV.s' sent  tons  l)v  \our 
Lordships,  ill  Mr.  l'oi)ple's letter  ofthc  21st  of  June  last, 
the  first  of  which  is,  Svhetiirr  tlic  act  of  the  trustees 
of  Georgia,  or  of  any  assenibiy,  p,i-.-ed  in  tiic  cojunies 
abroad,  and  contirnied  by  the  (,'rown,  can  grant  to  any 
of  the  said  provin.'cs  an  exclu-ive  trade  with  th(>  Indians 
dwelling  within  the  respective  ])rovin((.>.  ' 

S.Ui\,  ns  to  that,  we  ;ne  of  opinion  that  as  an  ab.solute 
exclusive  tiadt>  with  the  Indiaiis  would  !ie  destructive 
of  that  geiu'ral  riglit  of  tradin-  wliicji  all  Ids  .Majesty's 
subjects  are  entitlfd  to;  and,  tlicnMorc,  repugnant  to  the 
laws  of  (Ireat  Ilriliiin,  no  iwi  of  tiie  trustees  of  (ieor<Ma 
or  of  any  asseinol\  pu.ssed  in  the  colonies  »l)road,  con- 
firmed by  the  Crown,  can  grant  to  any  of  the  .said  pro- 
vinces, an  exclusive  traile  with  the  Indians  dwelling 
within  the  re.spective  provinces,  though    the  method  of 


i  t 


ft«. 


592 


OPINIONS  OF  KMINENT  LAWVEU3. 


trading  within  each  respective  province  may  be  I'ti'galat- 
ed  by  the  laws  tliereof. 

And  as  to  the    second   </>i',rc,  which  is,  whether  the 
art  above  mentioned    excludes  all    persons   whatsoever, 
whether     inluihitaiits    (if  Gei-rgia   or  !iot,  from   trading 
with  the  Indians  settled  within  the  bounds  of  the   pro- 
vince of  Georgia,   as    described  by   the  charter,  except 
such  as  shall  take  out  licenses  according  to  the  direction 
of  the  said  act;  we  arc  of  . .pinion,  that  the   act  therein 
referred  In  does  exclude  a'   persons  whatsoever,  whether 
inhabitants  of  (loorgia  or  not,  froni  trading  with  the  In- 
dians settleii  within  the  b  •umis  of  the  province  of  Geor- 
gia, as  described    by  (he   charter,  except  such  as  shall 
take  out  licenses  acconling  to   the  direction  of  the  said 
net;   that  act  and  the  reason  of  it,  extiMiding  t)  all  per- 
so;»,«f //''(Wvorrr/',  and    such   taking  out   of  lic.'uses    brin" 
no  more  than  ap.vper  regulation  of  tin-  trade  within  tLj 
said  province. 
JuUj  28,  1737.  D,   RvDEH. 

J.    &TR.AXGE. 

(10.)  Mr.  Wesf^  opinion  on   unmc.  nel.9  of  South  Car- 
nlina  for  rr,pil<if'n,L!  the  tradr  ir/'th  Ihr  IiKlinnsi. 

Tm  th.'    Right    Hon.   the    F.onls    Commissioners    for 
Tradr  and  I'lautatious. 
My  Lords; 

In  obedience  to  your  Lordships'  .uuimand.-^,  Ibavc 
perused  an  I  .•..UMdcivd  the  s(<veral  following  acts  pa.s8ed 
in  South  '"aroiina,  in  .\ugiisr  and  S'pt.uiber.  17'JI.— 
As  t(.  the  act,  eiiitlcd  mi  aef  |,,r  Uh-  better  regulation 
ol  the  Lidian  tiide,  by  ajt|)ointing  coinmi.ssioners  for 
that  purpose,  and  to  survey  and  supervise  the  garri.son.'', 
an<l  losettb'  the  bounds  of  the   Lidians,  "the    chief  pur- 


,1'"' 


OP   J  HE  NATIONAL    COMMERCE. 


593 


view  of  whish  act  is  to  regulate  the  Indian  trade,  and 
I'or  that  purpose  docs  direct  that  no  person  whatsoever 
shall  trade  witli  the  Indians  in  amity  with  that  govern- 
incnt,  witliout  first  repairing  to  Charleston  in  Carolina 
and  hiking  out  a  license  for  his  trading  from  three  com- 
niissioners  appointed  l)y  this  act ;  which  trader  is  also 
directed  to  give  bond  for  his  carrying  on  his  trade  accord- 
ing to  such  rules  and  regulations  as  shall  be  made  from 
time  to  time  Ity  the  said  commissioners. 

It  is  also  enacted  that  these  licenrseiSi  are  to  be  renew- 
ed annually,  and  that  tlie  sum  of  twenty  pounds  shall 
lie  paid  for  eu(]i  license;  and  jiowers  are  thereby  also 
given  to  the  said  conuuissioners  to  determine  all  con- 
troversies that  shall  happen  between  any  traders  and 
the  Indians,  in  such  manner  as  they  in  their  discretion 
shall  think  fit,  upon  the  evidence  of  any  single  Indian, 
withor.t  any  jury,  or  any  fi)r';i  of  law  whatsoever. 

If  this  act  related  to.  and  afiected  only  the  inhabitjints 
:uid  jiropi .  subjects  of  the  colony  of  Carolina,  I  should 
be  of  opinion  that  ii  should  be  not  nroper  to  be  passed 
into  law,  since  tl  e  li.irdshij)s  thereby  impo.sed  upon  the 
traders  are,  in  my  opinion,  very  grievous,  and  the  pow- 
cis  granted  to  the  connnissioners  seem  to  be  very  arbi- 
trary. 

Hut,  bc^iilc^-  these  [Mrticulars,  1  must  beg  leave  to  ac- 
(|u;iiui  your  Lor(l>^hips,  that,  upon  the  occasion  of  this 
.ict.  I  have  bccu  jittendeil  by  .lohu  Carter  Ksij,  (agent 
I'nr  the  |iro\!iicc  of  N'irgiuia,)  who  has  represented  to 
nil'  tlijit  till'  iuhiibitants  (A'  that  province  have  long  ca.- 
ried  on  a  C'Misiderable  trade  with  the  snnu  Indians,  the 
trade  with  whom  is  intemii'd  to  be  rci  dated  by  tins  act, 
ami  that  in  carrying  on  their  snid  trade,  they  are  obliged 

to  curry  their  goods  and  merchandizea  tluoutih  the  utter- 

70 


f 


594 


OPimONS    OP    EMINENT    LAWYERS. 


I" 


rt 


most  parts  of  tlie  province  of  Carolina,  which  arc,  at 
least,  four  or  five  hundred  miles  distant  from  Chai.'es- 
ton;  and  tliat  the  people  of  that  province  do  apprehend 
that  their  trade  will  {,o  ccmsiderably  affected  and  pr-ju- 
dicod  by  the  general  words  of  this  act. 

And,  in  relaticm  to  this  representation  of  Mr.  Carter 
(in  case  that  fact  is  true,  that  the  inhabitants  of  Virgin- 
ia are  obliged  in  their  carrying  on  their  trade,  to  trans- 
port their  goods  through  any  part  ..f  the  province  of 
Carolina,)  I  am  humbly  of  (^pinion,  that  those  Virginia 
traders  will  be  (by  virtue  of  the  general  words  of  this 
act,)  obliued  to  take  out  licenses  from  the  commissioners 
of  Charleston,  and  to  coniorm*  themselves  to  all  such  re- 
gulations as  are  prescribed  in  it. 

I  submit  to  your    Lordshins,    whether  the  difliculties 
and   hardships  hereby  imposed  upon  the  iniiabitants  of 
Virginia  will  not  anicM:!  to   a  total  prohibition  of  their 
trade  with  those  IncKaus  who  are  the    Mibject  matter  of 
this  Carolina  law  ;  >in-'e   every  Virunnia   trader  will  be 
obliged  to  travel  near  live  hundred  mdcsout  of  his  way, 
in  order  to  r,btai.<  a  Carolina  license,  f..r  he  nmst  be  per- 
sonally pres;>nt  in  Charleston  to  enter  int.)  bond,  ere  he 
can  purclK,M>  (hat  fav-.i  :    !„>    nust  come    there  precisely 
<liningtlu   .uoday.s-    <,uart.>rly    sessions  of  their    com- 
missioner,-^; and  i!   by  ^ickne.s-.  (!„>    |iv.iu,Mit   oserllow- 
iiigs  r.f  rivers,  or  any  othor  accident  in    his  journey,  he 
happens  to  miss  (liat    ..pportnuity,  lu-    must    then  'wait 
three  months  before  he  has  another;  and  all  that  while, 
himself,  bis  s(>rvant«,  au.l  horses,  laying  idle  .m  expense,' 
an.l  his  go,;d.s    liiiiil.'  to  ,„.,i,sh  .   Ik-  nmst   und   one  to  be 
securitv  with  hiu.  in  a    bond  of  tliiv    biuidrcd    poiuid  ; 
penalty  at  a   jil.ice  wb   ic  he  is  an  entire    stranger;  he 
luasl  pay  an  aniuial  tax  of  '    ent_) -three   pound.s  for  oh- 


OF  THE  NATIONAL  COMMERCE. 


595 


tainiiig  lii.s  license  and,  whicli  is  still  worse,  he  is  to  for- 
feit liis  bund  on  the  least  transgression  of  laws  not  pro- 
mulgated at  the  time  his  bond  is  given,  but  to  be  made 
occasionally,  according  to  the  sovereign  will  and  plea- 
sure of  three  persons  called  commissioners,  vested  with 
an  unlimited  power  of  declaring  whatever  they  think 
/it  to  be  law,  and  judging  definitively  upon  what  they 
please  to  call  a  breach  of  it ;  exposed  to  be  condemned 
in  as  many  .vuuis  of  ten  pounds,  as  complaints  shall  be 
made  against  him,  and  convicted  upon  the  evidence  of 
an  Indian,  and  that,  without  the  beneiit  of  a  trial  by 
jury. 

Besides  what  T  have  now  mentioned,  I  must  beg  leave 
to  observe  to  your  Lordships,  that  attempts  of  the  like 
nature  with  this  bill  have  been  long  the  occasion  of  dis- 
putes between  the  two  provinces,  for  as  lam  inlbrmed, 
in  the  year  1708  thei'e  wiis  a  complaint  made  by  the 
jirovince  of  \'irginia  against  the  government  of  Caroli- 
na, for  seizing  the  merchandize  of  several  t)fthe  Virgin- 
ia trailers,  and  coiupelling  (hem,  in  an  aibitiary  manner, 
to  pay  a<liity  for  their  saitl  <»oods  :  upon  whirii  complaint, 
llu^  then  Lords  Commissiiniei's  of  trade  and  plantations, 
wi-i'e,  upon  the  (ith  of  September,  ITO'J,  jdeased  to  make 
a  report  to  lier  hite  .Majesty  in  inuncil,  and  were  there- 
in di'  npiiiiiin,  that  the  <s;overnmi'nt  of  Carolina  had  no 
riglitfid  j)iu\cr  to  lay  any  duty  u[)  ai  goodss  caiiii'(l  to 
tliii-ic  we-ieni  lndiaii>  liy  ihc  inhabitants  of  Virginia; 
which  repui't  nf  tlicir  Lnrddiip-  was  afterwards  conlirm- 
cil  b\-  hi-r  Maji'-ty  in  ciamcil  ;  nut  withstandir  ^  which, 
the  govcnim'ait  <>1  Carolina  dii,  within  about  a  year 
after,  think  lit  to  pass  an  act,  (Mititled  "an  act  to  oblige 
tliM-i' tiadi'rs,  that  cnine  linrn  NiiLiinia  to  other  neigh- 
bouring colonies  to  trade  with  tlie  Indians  or  white  })er- 


Is 


!^ 


696 


OPINION  GP  EMINENT  LAWYERS. 


eons  living  within  this  province  and  government,  to  come 
first  to  Charleston,  and  take  out  licenses  to  trade,  ami 
to  be  subject  to  the  like  regulations,  and  to  pay  the  same 
duties  of  import  with  the  inhabitants  of  this  province 
and  government,  who  trade  with  tlielndians  living  with- 
in the  bounds  of  the  same.     By  which  act,  they  ditl  en- 
act the  substance  of  what  is  passed  in  that  m'  '  -li  is  now 
under  oonsideration;  against  which   act,   th      aid  then 
Lords  Commissioners  of  trade  and    ])laiitations  did  like- 
wise make  a  representation  that  it  was  m)t  proper  to  be 
passed  into  law  ;  upon  which,  l)y  oriler  in  council,  dated 
the  8th  day  of  January,  1712,  the   Lords  proprietors  of 
the  province  of  Carolina   were  coiuniaiided  to  take  care 
that  the  last-mentioned  act  should  be    iumiediately  re- 
pealed. 

My  Lovds: 

The  greatest  diflerence  that  1  cm  observe,  between 
this  act  of  1721  and  that  of  "171  I.  is.  dial  in  tlialot  1711, 
the  Virginia  traders  arc  expressly  nauu^d  and  the  duty 
openly  and  avowedly  laid  upon  tiiem;  Avhorcas,  in  this 
act  of  1721,  the  Virginians  are  only  comprehended  un- 
der general  words,  and  not  particularly  mentioned,  Wn-  it 
is  enacteil,  that   if  any    person  or   persons    wliatsoevei-, 
other  than  such  as  didy  obtain  licenses   in  the   manner 
as  in  the  act  particularly  mentioned,  ^-Imll  <liiccil\,  or 
indirectly  visit,   fre(|uent.    trade,    tralHc.  or  barter,   with 
any  Indian  or  Indians   in  amity  with  the  L;o\cnunent  ol' 
Carolina,  all  and  every  such  oUcnder  ami  (ijlriidcrs  shnll 
forfeit  the  sum  of  two  liundred  jionnds.  to    ]>o  sued   I'm- 
and  recovered  in  such  manncu-  as  in  the  act  is  directed; 
and  the  inhabitants  of  Virginia.  ii(it  beiui,-  able  to  carry 
on  their  trade  without  jiassiug  tliroii'.di  some  of  the  re- 
motest parts  of  the  ju-ovince  oT  Carolina,  1  aiu  of  ooin- 


OF    THE   NATIONAL    COMMERCE. 


597 


ion,  that  thoy  will  be  comprehended  in  the  general  words 
of  this  law,  and  will  be  disabled  from,  or,  ^.t  least,  very 
much  disturbed  in,  carrying  on  their  trade,  unless  they 
shall  first  (under  the  difficulties  I  have  above  mention- 
ed) take  out  licenses  from  the  commissioners  of  Charles- 
ton, according  to  the  directions  of  this  act :  and  if  I  may 
in  any  manner  depend  upon  such  information  as  I  have 
received  from  the  agent  of  the  province  of  Virginia,  it 
seems  pnjbable  that  one  of  the  chief  ends  proposed  by 
the  framers  of  this  act  was  to  comprehend  the  Virginia 
traders,  hoping  that  they  might,  by  the  means  of  gen- 
eral words,  compass  what  they  had  formerly,  to  no  pur- 
pose, attempted  in  express  terms. 

I  must  own,  that  what  I  have  now  laid  before  your 
Lordships,  is  chiefly  founded  upon  such  informations  as 
I  have  received  from  the  Virginia  agent,  but  I  was  in- 
duced to  give  credit  to  his  accounts,  because  what  re- 
lates to  the  former  reports  made  by  your  Lordships'  pre- 
decessors will  appear  ))y  l)ooks  in  the  otlice;  to  all  which 
I  would  beg  leave  to  add,  that  )K>lbro  I  thought  it  prop- 
er to  make  a  report  upon  the  Virginia  infonnations,  I 
seat  word  to  Mr.  Francis  Young,  (who  is  agent  for  the 
provin(!e  of*  (,'arolina)  to  let  him  know  that  the  agent  of 
^'irginia  had  lodged  with  me  objections  against  this  act 
l)eipg  passed,  in  onier  that  he  might  have  an  opportuni- 
ty to  lay  l)et'or(>  me  ,-uch  reasons  as  he  should  think 
])ro])ir  to  urge  on  i-LhaU'ot'  tiie  pfo\  luce  of  Carolina,  and 
in  deli'iK-e  of  tliis  law  lint  he  nevrr  '.bought  fit  to  lay 
before  luc,  either  in  v,-riting  or  otherwise,  any  consider- 
ations m-  reason-;  whatsoever  for  the  passing  of  the  said 
law. 

l''nr  llicsc  rcasdus,  Iherelbre,  1  am  luimbly  of  opinion 
that  this  act  is  not  ])i-oner  to  be  passed  into  law. 


.    •     1 


m 


598 


OPINIONS  OF  EMINENT  LAWYERS. 


I  have  also  perusid  and  considered  the  several  otlier 
following  act^^,  entitled  "an  act  Ibr  a  most  joyful  and 
just  recognition  of  the  iuunediate,  lawful,  and  undoubted 
succession  of  his  most  sacred  Majesty  King  George  to 
the  Crown  of  Great  Britain,  France  and  Ireland,  of  the 
province  of  South  Can)lina,  and  al'  other  his  Majesty's 
dominions;"  "an  act  for  establishii"  the  tranquillity  of 
this,   his   Majesty's,   province  of  South  Carolina;"  "  ar 
act  for  confirming  and  continuing  the  several  acts  there- 
in mentioned,  and  for  collecting  the  arrears  of  taxes,  and 
conlirming  judicial  proceedings  in  the  courts  of  law;" 
"an  act  for  preventing  the  spreading  contagious  distem- 
pers;" "an  act  for  the  speedy  recovery  of  small  debts;" 
•'an  act  for  the  better  settling  and  regulating  the  mili- 
tia;" "an  act  for  cstablisliing  a  court  of  chanceiy  in 
South  Carolina  ;""  '•  an  act  for  maintaining  a  watch  and 
keeping  good  order  in  Charleston  ;"  "  an  act  to  alter  tiie 
bounds  of  St.  George's  jiavish  ;"  "an  act  against  exces- 
sive usury  ;"  "an  act  to  empower  the  commissioners  of 
the  high  roads,  Occ.  to  ;dter  the  same  lor  the  better  con- 
veniency  of  the  inluibitants;"  "an  act  for   appointing 
agents  to  solicit  affairs  in   England;"   'an  act  to  ascer- 
tain the  manner  of  electing  memljers  of  assembly,  and  to 
appoint  who  shall  lie  tleemcd  cajuble  of  choosing,  or  be- 
ing chosen,  members  ;''  "an  act  for  e>l;il)li-hing  precinct 
and  county  courts;  "    -an  act  for  ascertaining  [)ublic  of- 
(ices,  fees,  li'c.  ;■'   "an  act  for  erecting   the  settlement  of 
Wineau,  in   Craven  county,  into  a  distinct  parish  from 
Saint  James's  Santee,  in  tlu'  >aid  county;"  and    •;in  ace 
for  re[)airini;'  the  t'auscway,  leading  to  Asliloy  river,  ter- 
ry, &c.   and   for   vcstiu'c   tho  I't-rry  iti    Cajituin  Edmund 
Bellinger:"  to   all   which,  1     lave   no  o!)jection  to  their 
being  passed  into  law. 


r  A7.   -:•),    I  ( . 


iK  H. 


^\ 


EST. 


OP    THE    NATIONAL    COMMERCE.  599 

(11.)  Mr.    Wesf.9  opinion,  relating  to  Custom  House 
officers  heivg  concerned  in  trade  and  shipping. 

To  the  Right  Hon.  the  Lords  Commissioners  for  Trade 
and  Plantations. 

My  L(n-d,s  ; 

In  obedience  to  your  Lord.shi{ :.s'  commands,  I  have  con- 
sidered of  the  statute  of  the  20tL  of  Henry  VI.  chap,  5, 
by  which  it  is. enacted  '4hat  no  customer,  &c.  shall  have 
a  .ship  of  his  own,  use  merchandize,  keep  a  wharf,  or  inn, 
or  be  ii  factor  ; '  and  I  am  of  opinion,  that  the  said  stat- 
ute is  st'U  in  force. 

This  statute  Avas  doubtless  intended  (as  is  manifest 
froni  the  nature  of  the  mi.schief  mentioned  in  the  pre- 
amble, and  which  was  to  be  remedied  by  it)  to  extend 
to  all  custom-house  officers  in  general ;  but  as  great  al- 
terations have  been  made  in  the   manner  of  collecting 
and  managing  the  customs  since  the  time  of  this  stnt- 
ute\s  being  enacted  ;  and  as  no  penal  statute  can  by  law 
be   extended,  by  an  equitable  construction,  beyond  the 
express  words,  I  apprehend,  that  in  case  your  Lordshipa 
should  have  any  thoughts  of  making  it  applicable  to  all 
the  custom  officers    is  they  stand  at  this  time,  it  will  be 
necessary  to  have  a  bill  brought  into  parliament  for  that 
purpose. 
Nor.  2(],  1720.  R,cn.  West. 

(12.)  Ihc  report  tt  the  King,  nf  the  A  ttorncy  and  So- 
hcitor-(hncvaJ,  Northey  and  Ihoinpmn,  on  a  2)roposed 
charter  to  a  corporate  hodij,  for  insjtring  ships. 

To  the  King's  most  excellent  Majesty. 
May  it  please  your  Majesty. 

In  humljlc  obedience  to  yoiu-  Majesty's  commands  to 


!i 


,'i 


II 


600 


OPINIONS  OK  EMINENT  T.AWYEKS. 


!f 


us,  by  your  c.der  in  council,  dated  the  second  day  of 
February  last ;  we  have  considered  of  the  annexed  pe- 
tition of  Sir  Justus  Beck,  and  two  hundred  and  eighty- 
six  others,  in  behalf  of  them,  cives,  and  of  several  others, 
merchants  and  traders  of  Great  Britain  and  Irclund, 
whereby  they  represent,  that  the  merchants  and  traders 
of  your  Majesty's  dominions  do  frequently  sustain  very 
great  losses,  lor  want  of  a.i  incorporated  ct>mpan\  of  in- 
surers, with  a  joint  stoc]\,  to  ma'c!  good  all  such  losses 
and  damages  of  ships  and  merchandizes  at  sea  as  should 
be  insured  by  them ;  that  the  establishment  of  such  a 
company,  by  jour  Majesty's  royal  authority,  will  bo  :i 
very  great  security  and  encouragement  to  trade  and  nav- 
igation, enable  the  merchants  to  make  quicker  returns, 
employ  more  hands,  increase  the  numbc  of  seamen, 
greatly  augment  your  Majesty's  customs,  and  preserve 
many  of  your  good  subjects  and  their  families  from  that 
ruin  to  which  they  are  now  exposed  by  being  assurers 
in  a  private  capacity ;  that  they  have  entered  into  a 
voluntary  subscr-ption  to  raise  a  fund  for  erecting  such 
a  company  of  assurers  as  may  eftectually  make  good  all 
the  losses  assured  by  them,  (which  will  in  nowise  inter- 
fere with  any  other  corporation),  and  ha\  uig  a  sufficient 
sum  subscribed  for  that  purpose,  they  most  huml)ly  pray 
that  your  Majesty  will  be  graciously  pleased  to  grant 
your  royal  letters  patent,  for  incorporating-  them,  with 
such  others  as  shall  subscribe  thereunto,  and  their  suc- 
cessors, to  enable  them,  by  a  joint  stock,  to  manage  ami 
'..irry  on  the  said  undertaking,  unvier  such  rides  and  reg- 
ulations, by  such  name,  and  with  such  jjowers  and  priv- 
ileges for  their  better  government,-  as  your  Majesty  in 
your  great  wisdom  shall  be  pleased  to  direct,  not  to  ex- 
clude particular  assurers  from  assuring  shi[>s  and  mer- 


VAAC«A4t-4AA4W      MO      VA1,\,J 


Ak\J  t»       \X\J, 


0>'    Tl-J    NATIONAL    CuM.MERCE. 


GOl 


As  we  have  .li-  .^u.^iu  rerl  of  the  annexed  petition  of 
Sir  Gilbert  He  t)_  .jio  and  three  hundred  and  seventy- 
five  others,  mercii;.uts  and  traders  of  the  city  of  London, 
on  behalf  of  theiustdves  and  others,  merchants  and  tra- 
ders of  this  kingdom  ;  whereby  they  represent,  that  for 
the  promoting  and  encouniging  the  trade  of  tliis  nation, 
it  hath  lieen  found  absolutely  necessary  to  make  insur- 
ance on  sln'ps  a  ^  '-oods  at  sea,  and  that  at  as  low  and 
moderate  rates  ..s  possible,  wliicli  is  a  very  great  ^dfie 
ami  benel't  ^  i  trade;  that  a  number  ;)f  office-keepers  po 
the  exchan^.  at  London,  who  act  as  brokers,  have,  for  a 
great  many  years  past,  made  it  their  constant  business 
to  pro.  ire  persons  of  good  substance  to  insure  and  un- 
ilorwrite  poli<ies,  by  wIk  neans  the  merchants  ha\  e 
been  regularly  served;  that  by  these  i  ^ans,  at  tliis 
time,  Ihe  proniiums  given  in  London  for  insuring  sl^ps 
and  gi  ..(Is  are  m  ich  lower  than  in  any  other  part  of  Eu- 
rope ;  and,  therefore,  many  orders  for  insuring  in  Lon- 
don are  sent  from  foreign  [.arts :  whereas,  formerlv,  great 
part  of  our  adventures  Avere  forced  to  be  insured  abroad; 
that  t(i  establish  a  corporation  for  insuring  ships  and 
1  ••  '  ludizes  will  be  a  great  discouragement  to  the  pres- 
f"  a  method  of  insurance,  without  their  giving 

g  .  .  security  to  the  insuied  than  they  now  have;  and 
it  may  be  so  managed  as  entirely  ..  all  into  th  ccrpor- 
atiou,  to  the  great  disappointment  of  the  bold  u  der,  by 
undue  preferences,  and  delay iivj,-  nnd  rtnisim,  to  insure 
on  exigencies,  when  ships  are  missing,  ,.-hich  freipicntly 
happens,  and  in  stormy  weather ;  h  mbly,  therefore, 
praying  that  your  Majesty  would  be  j  -ariously  pleased 
to  hear  ihem  by  their  counsel,  to  ofle.  reasons  atrainst 
tlie  ])assing  a  charter  tbi-  incorporating  a  munber  of  por- 
suiis  for  insuring  ships  and  merchandizes  at  sea.     And 


602 


OPINIONS    OF    EMINENT    LAWYERS. 


I 

Ir 

r 


by  a  third  petition,  hereunto  also  annexed,  the  merchants 
of  Bristol  have  desired  to  be  lieard  hy  their  counsel 
against  the  passing  the  said  (charter;  and  we  have  heard 
the  petitioners  for  the  charter,  and  also  the  petitioners 
of  London  against  the  charter,  by  their  counsel,  none 
appearing  for  the  petitioners  of  the  city  of  Bri;  tol. 

And  for  inducing  your  Majesty  to  incorporate  the  sub- 
scribers,  it   has   been  insisted  on   that   tb-   insuring  of 
si  ips  is  for  the  benefit  of  trade  ;  and  that  insurances 
will  be  best  made  by  a  corporation,  and  they  will  do  it 
at   the   c.isiest  rates;    and,  that   "n   a  corporation,  the 
transaction  for  an  insurance  will        quicke-,  there  being 
only  one  subscril)er,  which  will  he  done  at  'm<-v  ;  where- 
as, by  the  inettiod  now  used,  as  is  ,  tated  ir  lue  petition 
against  the  incorporation,  the  omce-keepers  arc  to  pick 
up  the  insurers  here  and  there,  as  they  can,whicli  takes 
up  much  time  and  is  inconvenient ;  and  tliat  the  corpor- 
ation, it  is  probable,  will   he  more  diligenl    tlian  single 
persons,  tin  credit  of  the  ^corporation  <le;MMiling  on    it  ; 
that  there  will  be  fewer  suits  u;,on  policies  tuau  at  pres- 
ent, fir    s  the  present   insurance  is  uiade,  e-ery  under- 
writer m.iy  try  his  particular  insurance,  and  in  the  case 
of  a  corporation  there  can  be  hut  one  suit,  an<l  this  can- 
not be  a  monopoly,  the  mrrchauts  being  at  lil..Mt\  t,.  in- 
sure -.vith   tlio  corporation,  or  with   private  ]>crsoi,s,  as 
they  shall  think  fit;  and,  thrrcfore,  it  will  alwavs  betiic 
interest  of  the  corporation  to  insure  on  nmdrrate  lei  us; 
ai'd    the  incorporating  insurers  will  l)e  an    ense  to  tli..se 
ho  insure  with  them,  for    that    the  corporation  i.^  one 
..^pinst    wlioin   ;he   suit   mnv    be    broiigiit ,    ubrreas,  if 
twenty  or  thirty  were  to  join  in  a  partnership  |(    insure. 
every   (uu«   must   le   named  in   av     -um    to  be   brmiirlit 
against  them,  that  'he  insured  will  have  In-tter  secnri- 


O'.^    THE    NATIONAL    COMMERCE. 


603 


ty  from  a  corporation  than  they  .an  have  from  particu- 
lar persons;  for  thi.ta  million  oi  laoney  is  .subscribed by 
the  subscribers  to  be  the  fund  of  the  said  corporation, 
whereby  there  will  always  be  a  fund  to  answer  their 
policies,  so  that  there  is  no  probability  ot  the  corpora- 
tion failiig  ;  whereas,  as  the  present  use  is,  many  of  the 
insurers  continually  fail,  and  there  is  no  deposit  what- 
soever to  secure  their  insurances.  To  avoid  which,  this 
corporation  with  a  fund  is  projjosed ;  besides,  the  pres- 
ent insurers,  over  and  above  the  ten  per  cent,  mentioned 
in  the  common  policies  to  be  abated,  will  not  pay  with- 
out suit,  unless  a  further  abatement  of  six  pounds  per- 
cent,  be  made;  whereas,  if  there  were  a  corporation,  they 
durst  not  iritle  or  delay  as  private  persons  do,  but  nuist 
immediately  pay  their  los.ses,  for  the  credit  of  the  said 
company  :  and  as  to  the  dithculty  of  making  a  corj)()ra- 
tion  U)  .ipprai  to  suits  to  bo  brought  agaii  st  them,  they 
propose  tli;il  their  incorporation  shall  be  subject  to  be 
dt'tcrmined  ' i\  your  majesty,  if  they  do  not  appear  as 
.eadily  as  private  persons  -re  obliged  lo  do. 

•Vnd,  by  tin-  aflid;ivits  ..  .iiexed  t  .  the  petition  foi-  the 
I'liiirter.  .lobii  Kiiimct  depose«,  that  he  has  for  several 
I'iirs  Iradi'd  to  Holland  and  Ilnmburg'  ,  and  has  not 
•  nade  ot,e  insurance  in  (Jreat  Hritain.  being  of  opinion 
that  '.lie  iiismcrs  would  l)c  -ali'r  and  cheaper  at  Amster- 
ilaii',  and  lli.it  ih(>  .-amc,  or  tln'  grc'icst  part  thereof, 
have  lie.  II  constantly  made  'here;  ,intl  Kobert  .la('Us(>n, 
clWuiHterdani,  merchant,  nid  .Inln  ( Jascoign,  of  Hofter- 
(lam.  morihant,  scerally  depose,  that  it  is  frc<|uent  an<l 
cii.stomary  lor  niercliants  anl  othtM's  residing  in  Knghuid 
to  give  onlcr-  to  merchants  in  iloljatid  to  cause  iu'^ur- 
ance  to  Ik-  made  for  them  there,  and  that  they  have  fre- 
quently receiveil  such  orders  and  done  the  same  accord- 


11^ 


604 


t 


"f 


OPINION.?    OF    EMINENT    LAWYERS. 


m-lj,  and  they  know  it  Uy  te  almost  a  .lailv  praotlco  - 
and  Robert  Fletcher,  of  London,  merchant,  dqxjscs,  that 
being  lately  in  Hol!.,ul,  and  Iroquentlv  in  conversatioi, 
with  several  morci>ant.s  there,  an.>  olfen  discoursing  of  a 
subscription  then  going  on  at  London  towards  a  fund  for 
insPring  ships  and  merchandize,  they  very  i.mch  appmve 
oCtl^  project,  believing,  if  completed,  it  would  l>e  a  bet, 
tor  security  for  (he  insured  than  anv  i,u>thod  now  u, 
practice. 

The  counsel  for  (he  petitioners  agaii.st  the  incorpora, 
tion  insisted  tliat  tlie  subscription  is  made  onlv  for  the 
salve  of  stock-jobbing,  and  if  a  cnrporati.m  sliMild   be 
erected,  there  u-iU  be  another  slock  to  transact,  and  up- 
on  tiie  view  of  the  subscribers,  verv  mu,.h  the  greatest 
l""-(  thereof  being  of  .ntferont  trades  from  tb,.  tra.le  of 
uiercU^UKliziug,  it  is  ,       1,  .,t  that  that  is  the  -leMgn,  and 
that  (liere  is  no  iea>ou  to  iuciporate  tlie  sai.l  "ub<cri- 
Ix^rs  unies>  the  ntility  and  couvenieiicv  of  the  proposal 
Wseli:-cv,dent,   that  iu^unnic  of  ships  is  m-cessarv   tbr 
'"■•'•■;iM    trade;  and  if  the  present  meth..d  U"  nut  found 
;;'^'>;'>^-^-"H.nt,   tl'ereisnoreasontosetupacorporati.u, 
''>'-"'snriug;   besides,  that  b^    the  present  method  man v 
*•'""'""    "■•■  ■^"p,Hn|..d,   and    tb..renni    be,.,,  n^son   to 
vl<-tnn    th.m   wuhunt  absolute  rec.sMlv.      All    .„•   ti.e 
g'valesf  ,„.nt  of  thr  petiti.mers  against  ll...  said  .1.  ufr 
are   menbants.  u  hn  a,  e   to  have  tb.  beuetit  of  ,„  nran- 
ce8iaudtlH.M.|;,nMiH.N  insist,  it  is  ,.as„nabl,.  ,„  b.lieve 

'''■''"'''"■'"■ •^"'-"^v"nbi..ea  pnbhrben.li.  tb.-vuonld 

n-.toppn-..  11...  .,,ne.;,nd.iHn:d>uin>,M  tbal  .1.;.  Mietb- 
'■'  ..I  nisuiance  ,>  nun  .,n  as  good  a  foot  as  it  r,,u  !.• 
put,  that  •  I.e  n>.u,aure  ...now  lower  he-e  than  in  any 
country  in  Europ<.,  and  lb.  thai  rea.M-n  verv  main  (;,; 
"iirn  MM     baoi^  make  their  insurances  here;  thalumr 


OK    THE    NATIONAL    COM.MKRCE. 


005 


Majesty  cannot  iriake  a  monopoly  l)y  granting  to  a  cor- 
poration the  ,s()lu  power  of  insuring,  exclusive  of  others, 
notwithstanding  which,  the  granting  such  corporation 
will,  in  eunsecpience,  end  iu  a  nionopoly:  for,  if  such 
company  as  desired  should  be  erected,  h^i'-ing  so  large  a 
stock,  they  Avill  in  all  probability  insure  very  low  at  the 
beginning,  to  bring  peopU-  to  .hem,  and  thereby  discour- 
age the  present  method  of  insuring,  and  oblige  the  peo- 
ple who  aic  now  concerned  therein  tu  leave  ofl'  all 
tiionghts  of  insuring,  and  then  the  company  would  put 
such  terms  on  tiic  insured  as  they  should  think  fit;  and 
from  the  nature  of  insurances,  the  more  phiccs  the  bet- 
ter, for  if  one  will  not  insure,  another  may;  but  if  the 
present  insurers  >houl(l  be  suppressed,  and  the  corpo...- 
tiou   be   the  onl\   i)lace,   llu-y  will    insure  oidy  on  their 

own  terms,  iiiid  there  will  b. other  place  to  apply  to; 

;inil  as  to  the  objc'ction  tb;it  the  credit  of  the  corporation 
\.ill  ])r  (  incern.'ii,  it  was  answci.si,  that  a  corporation 
has  no  sense  of  shame  as  private  persons  have,  and  will 
•^tand  out  suits  longer  than  private  persons,  be<'a use  rich- 
'M-.  H.'sid.  >»,  the  dis|)alch  of  a  corporation  will  not  be 
like  that  of  private  persons,  they  may  act  but  at  certain 
hoiu-s,  may  k.'ep  liMJydays,  ami  in  (lisputal)le  cases,  may 
make  rcfcren.i's,  and  rxpect  reports  which  ma\  ocea- 
■■iou  great  dila\s,  which  is  not  |)racti(;il)|,.  Jn  insurances 
as  now  managed.  And,  bcsjd,.^.  alter  thev  have  dis- 
coi,raL'c(l  other  insurers,  if  they  should  then  insure  only 
at  then' own  ral.-s,  it  will  b.-  of  np'it  inconvenience  to 
TiiendMints:  and  as  to  tlir  oi.irction  that  private  iuMuvra 
"Ibn  l.nl.  It  was. Slid,  it  cauiint  !.,.  made  appear  but  the 
'"iiipany  Ti-iy  -top  pMriuMiiiv  in  case  of  a  war.  and  it 
would  bf  of  infinite  iiicoiuciiieu'  e  to  trade  if  the  method 
"i  insurance  should  piovi'  impracticable;   besides,  in  ca- 


606 


OPINIONS    OF    KMINENT    LAWYERS. 


|i  ' 


f* 


I 


ses  of  insurances  ii.s  now  used,  the  body,  land,  and  goods 
of  the  insurers  are  liable;  and,  in  ease  even  of  an  exe- 
cution against  ;.  e()ii![)any,  it  will  be  very  difficult  to  find 
where  to  execute  the  same  ;  and  further,  that  the  com- 
pany cannot  be  prevented  from  diverting  their  money  to 
other  us  •;. 

They  also  produced  several  merchants ;  and  Mr.  John 
Bernard  declared,  that  at  i)resent  the  best  mei.  upon 
the  exchange  insure,  and  very  few  Knglisiunen  insure 
abroad,  and  many  ibreigners  make  their  insurances 
here. 

Mr.  Shephard  atliniied,  tlu'  insurances  here  are  made 
very  easy  and  „u  better  terms  than  abroad,  and,  for  that 
reason,  many  ibreigners  insure  here  and  few  English- 
men abroad. 

Mr.   Ilfy>bam  dcc]:in«(l.  that  there  is  no  complaint  at 
l)rescnt  oftlie  ins'-raiices  here,  and  the  .vetting  up  r  cor- 
poration   will  make  tiie   p.cscnt  iiisin-ers  leav(>  off  their 
impiirio  into    the   natuiv  of  .-hips   :ui>'    their   voyauvs, 
\vluTcb\  the\  ui.iy  tiic  better  know  how  to  insure,  uiiere- 
by  the  whole  business  will  tall  into  tlu' corporation,    Mr. 
Morris,  .Mr.  Cn.HVey.   Mr.  Chester,  .Mr,  Harris.    Mr.  ivat- 
cliffe,  Mr    I'eriy,   and  Mr.  ilinkli',  ai!  agree,   tiiere  is   no 
wcasion    Ibr  a  eor|)oration,    but  that    tli.>   same   will   be 
prejudicial. 

PvtheaHid,ivit><  of  Koi  -  rt  .\ston.  .lamt's  .M.  ndcz,  and 
(J.  'I',  (Juigier,  annexed  to  the  Metition  agiiin.st  the  incoi- 
poriiliun,  it  appears  that  great  insurances  have  been 
from  time  to  time  made  lieie  on  iiceonnt  of  IbreigjuTfi, 
on  ships  at  sea,  lor  vny  great  sums  (.f  money;  which 
insurance^,  .Mr  .Vston  deposes,  were  m;iile  at  low  and 
♦•asy  rates,  and  idieiipc  r  than  at  any  otiier  idace,  Aiui. 
he  furtli.r  ,says,   that    fbr   the  most  part   In-  has  been  al- 


GU7 


OF    THE    NATIONAI,    COMMKRCE. 

lowod  by  hi.s  correspondoats  after  tlio  rate  of  one 
cent,  and  half  ;w  rent,  for  standing  hound  for  tlio  inssur- 
ers,  ovtM-  and  above  the  ii.Hual  ullowaneo  of  half  y.^;-  cent. 
for  oausin<r  the  insurance  to  be  made  ;  and,  that  he  nev- 
er lost  one  penny  for  standin,-;  bound  for  the  insurers: 
and  the  said  .Fames  Mendez  deposes,  that  the  reason  of 
his  orders  from  foreigners  to  insure  ha-  })een  from  the 
lowness  of  the  i)remiums  ^dven,  and  lor  the  vast  sums 
that  are  easily  insured  here,  and  the  greater  licilitv  <jf 
recovering  losses  and  averages  with  less  proof  than  is 
required  u\  other  places  ;  and,  tliat  great  advantages  ac- 
crue to  the  kingdom  by  foreigners  causing  their  insur- 
ances to  be  made  here;  and,  that  tlie  business  of  insur- 
ing is  at  present  so  well  done  in  London,  and  in  such 
great  reputation  both  at  home  and  abroad  that  it  caimot 
be  better,  as  he  apprehends;  and  he  verily  believs,  that 
if  a  newollice  of  insurant  should  be  erected  in  the  mm- 
ner  proposed,  tiuit  lie  shall  not  be  able  to  lo  great  part 
of  his  business  of  insurance,  several  orders  beiuir  very 
intricate,  and  with  so  many  condili.,ns,  altlioiigh  very 
fair  and  just,  that  lie  judges  a  new  oilice  would  not  ac- 
cept them  on  any  terms;  and  tiiat  the  insurers  being  of 
vabu  lie  bath  fre  |uently  undertaken,  at  the  request  of 
his  corresponih-nts.  to  whom  tlieir  worth  was  noi  so  well 
known,  to  make  good  tlie  said  policies,  iu  ca,s<«  ol  h\ssi, 
for  .so  low  a  consideration  as  ten  shillings  j>,r  r,  lit.  and 
Guigier  deposes  the  same. 

To  which  it  was  replied  on  behalf  of  the  jietitioners 
for  the  corporation,  tiiat  it  apju-ars  t  be  mercliants  are 
divided  in  tlieii-  opinions  (ui  this  matter,  some  ludnj;  for 
:nid  others  agninst  tb-  corporation;  and,  that  it  is  plain 
ftCom])aiiy  would  be  UM'tiil  to  the  piddir  and  to  tiaue  : 
for  tliat  tlie  policies  would  be  sooner  done  b\  a  corpora- 


G08 


OPINIONS    OK     F.MTNFNT    T.AWYKf'S". 


I 


tion  than  In*  the  several   persons  avHo  how  undorwrito 
policies;  and  that  the  security  would  he  better;  and  it 
is  plain  that  the  present  offices  may  1,^0  o'l  as  well  as  the 
corporation  ;  and  where  insurances  are  cheapest,  there 
will  he  the  most  custom;  and  if  the  C(M-.ipany  should  in- 
sist on  unroasonahle  deductions  or  delays,  no  person  will 
insure  with  them;  and  that  it  is  plain,  if  the  jrrant  will 
not  make  a  monopoly,  the  "onsequence  will  not  make  it 
so;  and  if  a  corporation  he  erected,  it  will  be  the  inter- 
est of  forei<rners  to  insure  with  thonu  wherel)y  tliev  will 
save  the  premium   for  insurinj,^  the  insuri'rs  :  and  thev 
produced  Sir  Justus  Beck,  who  declared  hisopin^jn  tliat 
all  forei.irn  insurances  would  he  made  with  tiie  compaiiv; 
and  that  about  three  years  since,  many  English  insured 
nt  Ilamhro,  as   judging  W   more  secure;  and    Sir   Jolm 
William-^  declared,  he  thought  the  corpoiation  would  lie 
of  advantage    to    trade;     and  \iv.   < 'larke   deidared,   he 
thought  tlie  cin-poration  woidd  be  for  the  benefit  of  trade, 
for  tiiat  thereby  there  would  be  one  place  more  to  insure 
at  than  now  meie  is  ;  and  there  would  be  great  security 
from   such   a    company,  whereas,   there  are  frequently 
great  losses  by  pri\at(>   iu^nreis. 

On  the  wiiole  matter,  it  is  agreed  on  all  isidi's,  that  the 
insuring  of  .^hips  is  ..I' ab^,,li,ie  n.-ees.sity  H-r  f  b.' earrvinu 
on  of  foreitrn  trade,  and  (hat  tlic  .snue  bus  been  always 
managed  in  the  inetiiod  the  same  is  now  in;  and  it  has 
i>(m'  beiui  made  out  that  then-  i.x  any  cor])oration  in  Ku- 
rope  l'o>-  iu.suring  sjiips  ;  that  the  want  of  a  good  method 
of  insuring  \sill  be  very  littal  to  trade-  :  and  w<'are  hum- 
ltl\  of  iipiii'DU.  that  tlie  making  an  e\peiiiiient  in  a  tliiuir 
of  this  nature,  if  it  slioidd  luove  ami-s.  \\,>\i\,\  bed'  ||„' 
utmost  r<.n,seqneiiee  Ic.tbe  trade  ..f  this  naiiun.  Murl  tli.ti 
it  so  lii'jhly  concern*  trade  and  cunnueree  thai  it  willl.e 


OP  THE  NATIONAL  COMMEItCK 


609 


proper  for  the  consideration  of  the  parliament;  and, 
therefore,  we  cannot  advise  the  erectini^  a  corporation 
foi-  the  insuring  ships  and  goods  at  sea,  against  which 
there  arc  so  many  -  icat  ohjections,  especially  the  meth- 
od now  used  being  appi'oved  of  both  at  home  and  abroad; 
and  we  are  not  able  to  determine  of  what  cunse(|uence 
the  erecting  of  another  corporation  in  London,  witli  a 
stock  of  a  million  oi'  money,  may  be  to  the  puldie. 

The  petitioners  for  the  corporation  have  laid  before  us 
several  heads  for  a  charter,  if  yoiu*  Majesty  shall  be  gra- 
ciously pleased  to  grant  the  same:  but  the  .-mie  not 
having  been  referred  to  us,  and  the  opponents  opposing 
a  charter  in  general,  they  did  decline  entering  into  t)ie 
consideration  thereof,  and,  therefore,  we  have  not  pre- 
sumed to  lay  the  same  before  your  Majesty. 

March  12,  1717.  Edw.  Northed. 

AV.M.  Thompson. 

(13.)  7nc  o/niiion  of  the  Att')rncy-(frmral,  L<vinz,  on 
the  King's  po\rrr  to  grant  a  patent  for  nulling  hlach  pep- 
P'  r  irhiic. 

To  the  King's  most  excellent  Majesty. 

The  humble  petition  of  William  Crouch,  of  Lomlon, 
merchant,  and  James  Whistou,  of  Loudon,  brol<er, 
sheweth, 

Tliat  yinu'  petitioners  have  lately,  with  greatindustry 
and  charge,  found  out  and  dis(-overed  anew  iiivoution  of 
making  black  pepper  white,  and  merchantable,  which 
may  pmve  of  extraordiniiry  benetit  and  advantage  to 
your  Majesty's  trading  subject  \ 

Forasnmch,  therefore,  and  for  that  it  was  never  knowji 
or  done  l)y  any  before  witliin  these  your  Majesty's  king- 
domH,  your  petitioners  humbly  pray  your  Majesty  would 


1     "i 

l»^ 


610 


OPINIONS    OF    EMINENT    LAWYERS. 


I      ^ 


be  graciously  pleased  to  grant  them  a  patent  for  the  sole 
use  of  the  said  invention  during  the  spiice  of  fourteen 
years,  according  to  the  statute  in  that  case  provided  : 
and  they  shall  pray,  &c. 

At  the  court  at  Newmarket,  September  28,  1G80.  His 
Majesty  is  graciously  pleased  to  refer  the  consideration 
of  this  petition  to  Mr.  Attorney  or  Mr.  Solicitor-general 
to  report  what  his  Majesty  may  fitly  do  in  it  for  thj 
petitioner's  gratification  ;  whereupon,  his  Majesty  will 
declare  his  future  pleasure. 

Sunderland, 
May  it  J  lease  your  Majesty  ; 

I  humbly  conceive  your  Majesty  may  (if  so  graciously 
pleased)  grant  such  j.atent  a.s  is  desired,  if  the  same  be 
a  new  invention  ;  but  before  it  Ik^  done,  I  humWy  think 
It  advisable  that  the  merchants  might  be  heaitl  as  to 
what  inconvenience  may  thence  arise  to  the  pepper 
trade  which  is  very  considerable. 

October  12,  1G80.  Creswell  Levinz. 

IV.     (1.)   Ihe  Attomcy-Gencral,  Norihey's  ajnnion  on 

foreign  o.in^. 

To  the  Right  Honorable  the  Lord..  Commissioners  for 
Trade  and  Plantations. 

May  it  please  your  Lordships  ; 

In  obedience  to  your  Lordships'  commands,  signified 
to  me  by  Mr.  Po  >plc,  J„„.  your  secretary,  I  have  con- 
sidered of  the  in.osed  papers  mentioned  in  the  annex- 
ed letter,  and  do  humbly  certify  your  Lor.lships  that  the 
value  of  the  foreign  cf)ins  is  well  cstablisl'ied  by  her 
Majesty's  proclamation ;  and  the  tender  ol  the  same, 
according  to  those  values,  is  a  legal  tender,   and    every 


ri 


OF   THE    LAW    OF    NATIONS. 


611 


body  is  bound  to  take  them  at  those  vahies ;  but  if  any 
person  (as  the  persons  comphained  of  do)  will  accept 
them  at  f,'reater  values,  I  do  not  know  that  it  is  any 
oftence,  being  to  the  prejudice  of  the  receiver,  none  be- 
ing obliged  to  take  them  in  payment  from  him  at  more 
than  they  are  settled  at  by  the  proclamation.  This 
mischief  we  labored  under  here  in  England,  till  by  the 
act  of  the  (Jth  and  7th  William  it  was  made  an  otlence 
to  take  broad  money  at  more  than  it  was  current  for, 
and  I  am  apprehensive  this  mischief  will  not  be  remedied 
without  an  act  of  parliament  made  here,  to  lay  a  penalty 
on  all  persons  in  the  plantations,  who  shall  there  receive 
the  coin  at  other  values  than  they  are  directed  to  be 
current  at  Ijy  the  jtroclamation.  H  the  proprietarv 
governments  make  Invs  to  give  those  coins  a  currency 
beyond  the  proclamation,  I  am  of  opinion  they  are  guilty 
of  a  higlnnisdemeanor,and  their  charters,  or  at  the  least 
the  power  of  making  laws,  may  be  seized  into  her  Ma- 
jesty's hands  by  r/iio  ivarranlo,U)  be  brought  against  them  ; 
but  the  acts  of  particular  ])ersons,  as  I  take  this  practice 
complained  of  to  be,  will  not  prejudice  the  charters  or 
corporations. 

(hi.   l[\  1705.  Edw.  Northey. 

VAi^hth\y.—(Jf  the  law  of  ua! ions,  whir/i,  nmlti/itiious 
as  It  is,  may  for  tlv  pves::tit  purpoan,  be  aws'ufcred  iimfd- 
tint  IhlkI-' :  1.  Of  trrdlics  with,  pnu'ti's,  a  nil  the  hrritclns 
thu'r'if ;  2.  (fthe  (jftcts  Ufishnjfnnn  the  inchjK/u/cncc  (f 
the  United  Slates. 

(1.)    'I he  ojnnion  of  Sir  L'oline  Jvnhinf,  on  Captain 
C I'lk's  case. 

May  it  please  your  Majesty  ; 
Upon   the  view  that  I  have  had  of  Captain  Cook'a 


|i    i-""       ' 


612 


OPINIONS    OP    EMINENT    LAWYERS. 


y  . 


^.jceedings  in  the  court  of  Spain,  and  particularly  of 
the  two  oomihissions,  or  sentences  given  by  the  Queen 
regent,  it  is  my  humbb  opinion  that  Captain  Cook  must 
prosecute  the  eflects  of  those  two  sentences  at  the  Ha- 
vanna,  and  must  afi'ect  the  ministers  of  justice  there 
with  a  denial  to  execute  the  Queen's  commissions,  or 
else  with  such  delays  as  amount  to  a  Mat  denial,  before 
that  his  cause  be  ripe  for  the  granting  of  reprisals. 

It  is  true  his  case  is  sad,  and  it  may  be  as  true  that 
these   sentences  were  given  not  with  any  intention  to 
remedy  him,  but  as  an  amusement  only,  and  with  a  de- 
sign to  put  him  oft".     This  seems  to  be  the  judgment  of 
.Sir  A\'illiaui  Ciodolphiii,  your  Majesty's  ambassa.lor  up- 
on the  i)lace,  which  as  it  is  a  matter  of  state,  and  an  ac- 
count  how   the  ministry  there   governs  itself  towards 
your  Majesty  in  this  juncture,  I  shall  not  presume  to  of- 
fer any  thing  to  yoilr  Majesty  as  to  the  state  part  of  it ; 
but  as  to  the  matter  ..I  law  in  tliis  case,  I  do  humbly  lay 
it  as  a  grc)und,  that  reprisals  will  not  lie,  where  there  is 
neither  denial  of  justice  nor  a  delay  of  it  amounting  to 
a  denial. 

In  tliis  case  it  cannot  be  said  there  is  a  denial,  in  re- 
gard tliat  there  is  an  entire  satisfaction  a-    .-".ed  in  the 
Queen's  C(munissions,  with  (  urumstances  t.   -eeming  fli- 
vcr,  all  appeals  l)eiiig  ah.solutely  forbid,  and  all  necessa- 
ry power  lor   the  due  execution  of  ihem  being  •    ven  to 
(lie    i)r()per   ofticer;    nor  yet  do   the    delays   suft'ered  in 
.Si)ain  .unouut  to  a  denial  of  jusiiee,  for  though   tlu'  at 
tendance  tln're  was  for  nine  w]ioh>  months,  yet  a   judg- 
ment   being  sued  lor,  and  at  last  given,  that  delay   can- 
not be  said  to  ai.ioiint  to  u  d(Miiai  ofjiistice. 

It    IS    true,    and   a  great   iiii.schief.   that   the  parties 
wronged  are  sent  to   the  llavannah  to  have  reparation 


OK    THE    LAW    OF    NATIONS. 


613 


done  them ;    yet,  I  must  confess,   I  cannot  un(lerst<and 
how  it  could  have  been  otherwise  oideied  in  this  case; 


and  if  a  spoil 


\V( 


itted 


Spaniards,  by 


of 


commi 
iviaje.sty  s  subjects  of  Scotland,  or  Ireland,  upon  ei 
those  coasts,  and  that  the  wronjjj  doers  were  there,  I 
know  not  how  such  Spaniards  complaining  here  could 
refuse  to  go  (when  your  Majesty  should  direct  it)  to 
seek  and  receive  their  remedy  and  the  execution  of  yoyr 
Majesty's  award  a.id  pleasure,  from  the  justice  of  the 
place  where  the  injury  was  done. 

It  is  said,  indeed,  in  Captain  Cook's  memorial,  that 
Francisco  Lopez  de  Andrade,  one  of  the  spoilers,  and 
others  of  them,  were  in  Spain  while  the  Captain  was 
there ;  though  this  ])e  true,  yet  it  will  be  very  obvious 
lo  the  Siwniards  to  re])ly,  that  Captain  Cook  did  not 
sue  out  any  jirocess  against  him,  and  if  he  had,  that  the 
sakl  Lopez  slu^uld  not  have  been  sheltered  from  the  pub- 
lic justice.  Thus  it  may  be  thrown  on  Captain  Cook 
to  shew  that  he  hath  begun  any  prosecution,  civil  or 
criminal,  against  Lopez,  and  that  justice  was  denied 
him,  else  his  complaint  that  he  is  not  like  to  meet  with 
Lnpoz  at  the  Ilavannah.  will  signify  little,  to  make  that 
circumstance  a  denial  of  justice. 

Tliat  which  may  seem  hardest  in  Captain  Cook's  case 
is,  that  he  is  sent  to  Havannab,  to  those  who  have  al- 
ready flatly  denied  him  justice,  and  that,  though  they 
sliuuld  Ijc  prevailed  with  to  procei'(l  to  execute  the 
Queen's  commissions,  yet  tliat  they  will  lequire  a  new 
li(|iiiil;itioii,  ;iri(l  fresh  proofs  ol'  tlic  losses  and  damages. 

'I'"  tjiis  tliey  will  ;Mi^wei-  in  S|i,.iii,  lirst,  tliiit  th«»so  of 
tlio  lla\  Miuiah  are  now  no  judges  on  ;Iie  merits  of  the 
cause,  l)ut  iiiinistei,>  oidy,  to  procinc  the  leparation  that 
the  Qn<(ii   hath  awarded.      A^   to  tlu^  new  liipiidation, 


;ip  ^ 


f    I 


614 


OPINIOiV.S    OF    E-^IINENT    LAWVERS. 


they  will  say  that  they  inust  be  allowed  to  govern  them- 
selves according  to  their  own  law.s  and  forms  in  the 
manner  of  i)roceeilin<f. 

They   vili  further  <•   ■  "'vs  fiv  ,  the  proof-  made  in  the 
admiralty   here    wocdu  been    .sutHcient    to    ha /e 

grounded  reprisals  ..]..  .:.  these  sentences  for  satis- 

tactioii  boen  denied  him,  bee. use  the  whole  matter  must 
then  have  been  taken  f  >  -hw,  and  the  trnm  in  proof 
must  have  been  the  suth  for  the  levyin;^  ;jf  which  the 
letters  of  reprisals  must  have  been  granted  and  limit- 
ed ;  for  all  reprisals  nuist  be  limited  to  a  certain  sum. 
But  the  Queen  having  not  condem-ied  the  wrong  doers 
in  the  sum  demanded  and  deposed  to  in  the  admiralty 
here,  the  law  there  (if  1  mistake  it  not)  allows  the  de- 
fendant being  seized  and  executed  upcm,  to  bring  the 
plaiutitf  til  a  new  li(piidation. 

One  mischief  more  there  is  in  this  case  ,  the  wrong 
doer  may  prove  insolvent,  or  be  dead  l)y  this  time,  or 
else  get  out  of  the  reach  of  the  .justice  of  the  Havamiah; 
but  these  are  accidents  fur  which  it  c;,!i  hardly  be  made 
out  that  the  crown  of  Spain  is  accountable  in  case  the 
com-ts  of  justice  are  otherwise  always  open  ;  for  these 
casualties  are  such  as  .io  fre(iuently  intervene  in  all  the 
Sovernme.ds  in  th.>  world,  and  wliere  men  become  in- 
solvent, or  cannot  be  met  with,  tliero  is  no  remedy, 
ti'ou-ii  tiie  '.  )vcrnmrnt  itself  be  never  so  nearly  c<jn- 
ccnira  either  in  its  own  ie\,niie,  or  in  the  execution  of 
I    '    .i-  _''isticc. 

All  tiicse  mischiefs  [)ut   together  give  but   little  pros- 


pect/.r  hop.-^  to  Captain  look  of  real  reiiaration,  yu^. 
I  bey  ai''  .01  (as  1  humbl_\  eoneeive)  of  that  nature  as*^  to 
excuse  or  dispense  with  him.  if  be  pivtends  to  re[)risitls, 
fi-om  using  ail  mean^  and  diligence  possible  to  demand 
and  prosecute  the  execution  of  his  sentences  at  the  Ha- 


OP    THE    LAW    OF    NATIONS. 


Oil 


vannah ;  for  till  he  hath  used  all  the  instances  and  dili- 
gence that  any  suhject  of  Spain  would  he  obli<red  to,  iu 
s   case,  he  Avill  not  (as  I  humbly 


hi 


crmceive)  )je  sufH- 


lin  your  Mnjest'    -  letters  of 


re- 


ciently  founded  to  obt 
prisals. 

This  run  will  be  extremely  tedious,  char-^eable  and 
uncertain  in  the  success,  yet  I  can  think  but  oi  one  way 
t  J  prevent  it,  it  is,  may  it  please  your  Majesty,  by  call- 
ing on  the  government  of  Spain  to  nominate  certain 
commissioners  on  each  side,  that  shall  hear  and  deter- 
mine this  and  all  other  differences  arising  from  depre- 
dations at  sea. 

The  third  article  of  the  treaty  of  Madrid  doth  ex- 
pressly mention,  and,  in  a  manner,  suppose  a  constitu- 
tion of,  and  recourse  to  such  commissioners,  in  order  to 
prevent  the  harsh  remedy  of  reprisals.  This  would  be 
much  the  shorter  way,  but  it  would  bring  on  such  reck- 
onings of  the  same  kind,  that  they  at  Madrii.  do  threat- 
en to  charge  upon  your  Majesty's  subjects  ;  I.v)wever,  I 
humbly  take  leave  to  mention  it,  beeau.«e  the  Queen  re- 
gent having  given  two  sentences  or  commissions  that 
have  the  countenance  of  an  entire  satisfaction  (for  so 
they  are  worded),  it  will  be  a  very  hard  matter  for  a 
stranger,  as  Captain  Cook  is,  not  to  make  one  folse  step, 
but  to  bring  it  about  in  liis  prosecution  so  to  affect  the  ■ 
justice  of  Spain  with  the.se  wdfid  delays  a.s  may  be  fit 
for  your  Majesty  to  grant  reprisals  up.)n  ;  anfl  I  mention 
this  the  rather,  in  that  this  way  of  treating  by  comuji."- 
sioners  for  depredations,  I  HikI  t^  have  oeen  the  usual 
course  between  Queen  Elizalieth  and  her  neighbors. 

One  word  more.  I  humbly  crave  leave  to  intimate 
that  the  treaty  of  America  does  require  a  further  eluci- 
dation ^'  ■   adjustment  by  consent  between  your  Majesty 


vi    ,  ■ 


016 


CPIMONS    OF    EMINENT    LAWYER;?. 


and  that  Crown:  (or  it  appears  by  tho  jii(lo;nv_-iit.s  of  the 
Queeii;  ill  tlie  matter  of  the  C;iinpeehe  wood,  and  other 
matters  therein  tonehed,  that  thev  in  Spain  are  l>eforo- 
hand  with  yonr  Majesty,  and  do,  hy  their  sccdn/o.i  rmlrs, 
athx  a  new  interpretation  npon  the  treaty,  in  declarins-' 
what  sliall  he  private,  or  not  private,  pia/.e,  or  not  pri/r, 
without  .'oiiunnnieatin.ir,  it  seems,  with  your  Majesty' 
and  without  any  pnhlieation  tliat  may  rea(di  your  Maj- 
esty's suhjeets. 

^^'*^-^'l*-^-  h.  .Tenkin.. 


nir 


T.     (1.)    77r  opinio)!  or  />:rfor.s  Krfon  and  Lloyd,!! 
brea^.e/s  o/  timti^a  arc  to  I,,'  pmiis/,,/  in  h'imlnnd. 

Wo  have  ii-  ohe.Henee   to  your  Lordships'  eonimands, 
con.sidere.1  Wn^  ,,„ur,    rcfern.d  to  us,  vi/ :    whether  the 
Kinn-  of   Eniihmtl.   havino-  made  nllianco  l.y  trratvaiui 
loap-u.    uitii  any  f.rei-,,  poti-ntate,  and  .herein  a,-r.vin- 
to  puni.^h  with  e.xtreme  rigor  such   a<.  hv  e,,i,,r  of  eorii^ 
missions  from  .Miemies  to  the  .s.id  allies,  >hall  takemiw 
against    the    K  in-'s  pr.i.v  an.l    treaties    proclaimed,  and 
spoil  the  Kino's  allir..  I.r  not  a  Icvvini:  o|    w:,r   airiiinst 
the  Kin.u.and  pnni>l,al.|r  ly  .|...,th  ;   or  what  erim,.  it  .<, 
and  how    puni.diahle'      It  is  our    huml.l.-   opinio,,,   t'.at 
this   i>   not  a   Icvyin-  war  a-raiust  (he   Kin-   no,.  I.v  the 
law  of  the   land    [.unishahle    withdralh:   it    is  a   rrimc 
against  hi..  Maje.sty's  treaties  of  p,,,.   ■,  an  I  the  strirf  pro-' 
chuuations   1...    hath  1,,.,.,,  pl-a  ,,1  lo  ..H  fo,th.  to  cnjoi,, 
thedu.'ol,,s,.r\an.roftl,..m;  ,t  ,~  also  ,,„  ..i).,,.,.  a-ainst 
the  law  of  nation.s.and  ly  thr  r,v,l  l.nv  ^i  \^  crimen hrm 
majtstatu, :  hut,  hy  the  law  of   Knuland.  we  -onrriv..  i( 
to  1h'  I.e.  more  than  a  e(.nf..lera<y  against  iiis  Majestv's 
crown  and    dignity,  and  hy  the    statute    for  the  triafof 
piracy,  the  2Sth  llenr>   VIII.  e.  ib.  pun.shahle  only  hy 


ill 


OK    THE    LAW    OP    NATIONS. 


f.l7 


Hue  and  imprisonment,  .and  there  is  an  oirender  in  the 
i:ko  kind  now  in  the  Marshalsea,  who  La(h  accordingly 
been  so  punished. 

.Vor.  120,  1077.  Tiios.  Exton. 

Rich.  Li,o\  d. 

(2.)  7Ii,;  oju\ihn  of  f/r  ■s<(ui€  rlrniau-^;  on  iJu  (qmwe 
of  acrcjjihiu-  ro>nmi.^.sio)i^  fo  rniinr    (waimt  iJu-    hai</-s' 

At  le  coniiniltce  of  trade  a,ul  plantations,  in  the 
rouncil  chamber  at  Wliitchall,  Tuesday,  the  l.lth  of  X..- 
vo/i!!)er,  l(i77,  present, 

Lord  Privy  Sen!.  Lord  Faulconhridge. 

Mar.piis  of  Worcester.         Mr.  Sec.  Coventry. 
K;.ri  of  ( :raven.  Mr.  Soc.  Willionison. 

Mr.  ('haii.-cjlor  of  the  Kxrh-'ipicr. 
It  is  our  liuuible  opinion  that  th!>  is  not  h'vyinu' a  .vr.r 
i-.i.'ainst  (he  Kinji.  (namely,  takir.-r  a  ruiniiii-ion  from  a 
fureiirn  pnw.-r.to  ei  ui.se  as  a  privateer  against  the  King's 
;diie«,)  nor  hy  the  law  of  tlie  land  punishable  l.\  death  : 
it  is  a  crime  against  his  Majesty's  treaties  of  poaeo,  and 


the  s 


triel  pn.elaniatioiishc  has  been  pleased  to  set  i) 


irth 


til  cuioiii  till'  (bic   m1 


)bscr\an('e  ot'  tl 


icni 


■in'e  atiaiii^t  the  hnv  <>['  nalidus,  and  by  t 


IS      ,'/ 


•i//it»,  i.rsir 


I  IS  also  an  ot- 
iif  <i\  il  law  it 


»iajc.itafl.s ;  but   b\  the  law  of  England 


\\.'  conceive  it  to  be  n,>  more  than  a  .'nnfedenicy  again.«t 


his  .M 


ujestv 


s  crown  and  di<rnitv,  aut 


bv    Mie  statute    |br 


ilie  trial  of  piracy,  the  'J.^lh  limi  \    \  III.  cai).    \.', 
ishable  only  by  line  and  iru| 


pi.n- 


•  risonnienl  ;   and  thci 


e  IS  an 


"tlnidcr  in  the    Marshalsea,  who  hatl 
MO  |>imished. 
Aor.  lil.   1(177. 


7y 


1   ai'C(U(lii|ol\ 


l»een 


THo.«i.  Exton. 

Hkh    I,i,ovn. 


id 


018 


(MM.MONS    OK    EMINENT    LAWYERS. 


(:>.)  'I he  cphti'^i  of  ihe  A<h'o<(il,=-<Jn,€ral,  Cooke,  on 
intikin./  fil}ii<(i!x  ti/ioN  I'ortfttjaU  in  1701). 

Totlu"  Kiiiht  Hon.  the  Lords  Coinniis.sioncrs  for  Tradf> 

and  riaiitiitions. 

.Mv  I, Olds  ; 

111  c^htMliciicc  to  u)iir  I,ord,s}iij>s'  commands,  I  liavc 
]HM-ii-»'d  ,111(1  (•onsidci-cd  the  enclosed  pa])crs  rel.itini;  (o 
the  petition  (iC  Sir  WilJiain  lled-cs,  and  am  limiihlv  ol' 
opinion,  tiiat  (he  conliseation  of  his  eO'eets  hv  the  Kini,' 
of  l*oitniial,  a-i  therein  stated,  is  a  manifest  violation  of 
the  law  of  nat  ion^ 

Her   Majesiy  lia  \  i  iiu' airtiu  i  v  lieeii    fi;raeioiis!\'  pleaded 
to  intei'po>e  on  the  l.-dialf  of  the  petitioner.  1  woiihl  inim-. 
lilv  propose  tliis  fuither  method  to  he  pursued,  when  for 
Hti  'c   reasons  it  may  hi-  ihouuht    (he  most  jiroper   June 
tiire. 

l>t  'That  hi'r  MajesU  lie  pleased  to  refer  to  the  court 
of  admnali  the  li.piidatioii  of  the  dama->'^  -ustained  hv 
the  petitioner  aii<l  to  eeit  ily  tiio  .«iimu  to  her  .Maje-tv, 
iind  that  intiinalion  (hereof  he  u;i\eM  to  (lie  Kinu,'  of 
rortiiguLs  niiiiister,  that  he  may,  if  lie  .shall  think  fit, 
intervene,  Avhilst  (liat  report  i>  under  consideration. 

lid.  That  her  Majesty  slioidd  he  ,^Taeio^^.s|y  pleased, hy 
her  ro)al  letter  to  the  Kiuj^oiTorfu^al,  peremptorily  to 
deMuuid  re.stitution  of  the  liipiid  damagt's.  within  a  euni- 
peteut  tiine,  to  he  (henvn  prefixed. 

oi\  Tint  if.  within  (he  lime  I imitod,  such  restitution 
bo  uut  maile,  lier  Maje.sty  l>e  tlieu  gniciou.sly  plea.sed  (,, 
empower  the  iKditioiur  ,  <ieizt'  uiiy  menhandize  or  oth- 
er eflects  of  the  Kinjr  )r  of  hi.s  nuhjeets,  whercMOOVcr  tho 
mune  iimy  ho  foniul,  until  he  slmll  he  justly  nutisHed 
not  only   for  tlu     a^nid  daniu^os  ho  liius  su«trtinod,  bi* 


OV    THIC    LAW    OF    NATIONS. 


619 


also  for  all  necossary  expo]is«>s  iiiado  in  the  in^ovfiy 
ilieroiil',  with  proviso,  that  the  petitioner  be  oMip^cd  to 
j^ive  ail  uccoiuit  of  his  proceedings,  ])y  virtue  of  such 
j)()\ver. 

.T.  Cooke. 
Doctors'  (Commons,  Sept.  22,  1700. 

(1.)  7/ir  opiiitdii  of  Ihr  Att>niiii  (iinl  So//i/fi)r-0/-'i- 
iKtl,  A' oil  Ik  11  tiiiil  litnjhioui!^  npo)i.  the  pitltn)n  of  several 
fiun'/ifi/ils'^  vhosi  .Wiips  Jttul  hdca  t<tl.<  n  In/  (li    Dunfu. 

.}A\\\  it  ])lease  voi '•  most  excellciil  .vinjest  y ; 

in  hniiililc  ol)c  iienec  to  your  Majesty's  oouniiands, 
signified  to  us  and  ^,i'  \a{h;tnicl  I.Ioyd.  vour  M,ijrst\'s 
advocate-general,  liy  Mr.  >ccielary  St  John,  we  liavo, 
in  the  ali.-tnci,  of  S.r  Nathaniel  Idoyd.  who  i-  now  at 
Cainhridge,  consi  'I'red  of  the  several  |ii'tllioiis  of  (k-orge 
Wogg,  of  Colelie.-  ti'r,  nierchant.  inid  oT  .luiKts  Alherg,  of 
London,  inendiant^  a'ld  (."hinlc-;  Kr.n  and  KmIktI  A  w- 
hnrne.  merchants,  of  King's  liViin,  seltinu,-  forth  thai  i  ho 
Danes  have  tiikoa  .seveml  ships,  houwd  froni  Sweden  to 
(Jreat  Britain  on  the  petitioner's  aecoimts,  prav.ijg  vour 
Majesty  t.)  alVord  tlieni  your  royal  piotection  and  conn-' 
teimncc  in  rocovoring  the  huiuc,  hy  directing  your  Maj- 
csty'H  xiivoy  in  DeuMark  to  rtvlniin  the  nnino,  or  l»y  as- 
HJsting  them  in  ihcir  rfiim  ;  and  wr  do  iiir,,|  hiniddv 
certiiy  your  Majesty,  that  tiie  naid  slii|.<  and  goods  be- 
ing tnl  :i  by  tiio  DanoH,  n.s,  and  insisted  on  to  he.  hiulid 
priz»,  fbo  piditioneii  must  make  their  (daims  and  provo 
♦'  ■••  v,.spective  titles  to  .i..'  same  in  the  court  of  adinir- 
...  in  Denmark,  in  «»rdor  to  prevent  a  condemnation, 
and  to  ()l>tain  a  restitution  thereof;  and  wo  are  inimbly 
,)inion,  that  it  will  he  reaj«)nable  and  just  for  vour 
Majesty's  njinister  at  Copenhagen  to  assist  the  ]>etition- 


I: 

I 
I 


if 
t 


620 


OPIMONS    OF    EMINENT    LAWVERS. 


ers  in  their  just  claims,  and  if,  after  their  titles  to  the 
ships  and  -oods  shall  be  duly  proved  to  be  bel.mging  to 
your  Majesty's  subjects,  and  nut  to  be  lawful  pri/ry,  and 
justice  shall  be  denied  them  in  the  courts  of  admiralty 
and  the  courts  of  appeal  there,  if  any  such  be,  your  Maj- 
esty may  then  dem;iiid  satisfaction  for  your  saiil  subjects 
from  tlie  crown  of  Denmark  ;  and  if  justice  be  not  then 
done  th.Mu,  tiu'  petitioners  may  projx'rly  a,,ply  to  your 
Majesty  for  letters  of  manpie  and  reprisal,  to  be  granted 
them  against  the  subjects  of  Denmark,  it  being  made 
api)ear  to  your  Majesty  tluit  your  subjects  have  l)een  de- 
nied ju^^tice  in  Denmark. 

^'''P'     "••    -^'^'-  EUW.    NoUTilEV. 

liOIi.   Kav.mo.nd. 
(5.)    2he  report  of  seven t'  'irillans  on  the  -mzure  of 
British  vessel'^,  hy  the  ASjumiar,/.;  in  the   ]\\H  Indks. 
Sir; 

Having  perns  d  Mr.  l^dhin's  letter  liom  Bermudu, 
January  9,  170:3-'    ui'h  the  allidavits  of  Sanmel  Sbir- 
lock  and  Sanmel   Smith,   as  also  of   Fn,..us   Jones  and 
J-'lni  W  iliiam.s,  we  humbly  nre  of  nni„ion,  tliat  in  case 
•the  Lords  Commi.Msioners  for  Iradeand  plantations  think 
those  infoiuiation>  to    be    true,    that  tbei,    the  ,,„lv  and 
projx^r  way  for  relief  will  be,  i.pon   a  n  p,v~ent.ttion  of 
this  matter  to  the  mini.stor  for  Spain  residing  her.',  and 
likewi..*e  by  Jier  Majesty's  minister  at  the  com  t  of  Mad- 
rid, to  demand  reparation  ami  redress  of  those  pnicticcs 
complained  of,  which  ,-eeui  wvy  prejudicial  to.  and  de- 
btructive  of,  tbe  liad.-  of  her  Majesty's  subjects  in  th(..^o 
parts;   and  (hat    herein  no   time    should  he    lr,st  :   which 
we  nevciiheh'ss  submit  to  iheir  Lonl.-hips' judgment. 

C.  Hedoks,  W     \Vt)oii. 

Natii.  Li.ovn       Him    Hemhman 

Xli;.\.iSEWTo.N        Doctorjj' Commons.  March,  4,  I7Uo-4 


'W 


OF    THE    LVW    OF    NAnONS. 


621 


(6.)  llvi  A(h'f)c(ite-Qmeral,  Doctor  Slmjisonh  opinion, 
on  the  prnji^ct  of  a  liaily  of  commorre  ir/t'i  /'ni-s^-ia. 

Sir : 

In  obtHlienco  to  the  commiuids  of  ihe  Lords  Commis- 
sioners ol"  Trade  ;uid  Plantations,  .s:<rniried  to  me  by  yuur 
letter  dated  the  ord  of  this  month,  I  submit  to  their 
jud<i;ment  the  i'ollowin^^  observations,  which  have  occur- 
red to  me  on  tlie  perusal  of  the  i)i-oject  of  a  tieaty  of 
commerce  ])roi)()sed  on   the  part  of  the  Kino-  (,f  Prussia. 

If  this  project  should  be  carried  into  execution  upon 
the  lootini,'  it  now  stands,  it  would  be  very  benelicial  to 
the  King  of  Prussui,  but  in  my  opinion  disadvantage- 
ous to  (licat  Britain,  especially  at  this  time  when  we 
are  engaged  in  a  w.ii'  witli  France. 

]5y  this  project  nothing  is  to  b.»  dt'chrcd  contraband 
but  what  lelatcs  to  (be  land  scrvic<'.  and  the  King  of 
Prussia  is  to  be  enipowere.l  1,_\  ircaiy.  to  can'\-  naval 
.--tores  and  all  ('([iiipage  Ibr  the  se;:  s(  rvice  to  our  ene- 
mies, which,  ly  the  Uiw  of  nation^,  be  i  :  not  at  pre^Mit 
authorized  lo  do  ;  ami  tli"U'.di  this  nation  \\illhave  a 
reciprocal  right  to  do  the  saiue.  \  i^t,  as  the  Kini:;  of  Prus- 
sia is  not  a  luaritiiue  power,  tiiat  pri\  ilege  wiil  be  of  no 
advant.ige  to  us. 

'liie  l)roject  i<  the  same  in  .--ubstance  a-;  the  treat  v  l)e- 
fwcai  Sweden  and  ( licat  iirilain,  made  in  ibi'  \  e.ir  IfHi  I 
and  il  il  >bouid  be  thought  necessarv  to  cnlei'  into  aii\ 
coinnierci.ai  one  with  I'ru.ssia,  the  |)lan  of  that  treat\- 
seems  to  bo  as  little  iirejudicial  to  us  a.-  an\  extant  ;  but 
1  tiiiuk  il  (Ic.-irable  that  some  .aller.itinn-  >liould  lie  inaiie, 
and  p,!!  ticidarly  uitb  respect  to  cmil  labaiid  and  the 
passport,  U8  to  which  the  convention  wiib  ihainiark,  in 
111'.)  I,  seem-  to  be  a  better  plan       Tbe  contraband  spcci- 


622 


OPINIONS    OP    EMIXKVT    LAWYERS. 


fied  i)i  that  convoiitioii  ovtonils  not  only  to  naval  stores, 
in  e>.[)iess  torm<.  Init  to  all  instrnnicnts  of  war,  either 
li.v  sea  or  land;  and  more  strictness  is  there  required 
Avith  i-ospect  to  the  oaths  of  the  masters  and  owners  of 
the  ship  and  ear-o.  Avith  the  nature  of  it,  and  destina-. 
fioii  of  the  vnvaLTe,  as  well  as  in  regard  to  the  ohtaining 
of  tlu^  passport,  and  the  lorm  tiiercof. 

I  do  not  rerolU'cl  an  instance  in  the  late  war  of  a 
Swedish  shij)  Iicin-i-  taken,  furnished  with  a  passport 
n-rreeahle  to  tlH>  licr.ty  of  h'.ti  I,  hut  most  of  those  which 
Were  taken  were,  upon  in(piii-\  ,  found  to  carry  contra- 
band, or  conceal  enemy's  property,  thoui^di  they  hail 
jiasses  on  hoard  Iiiipoitinu-  the  coutrai-\  ,  and  I  am  per- 
suaded tint  null  ^-  '^nniesiicii  provisj  >n  Ii(>  made  as  is  in 
that  con\enii<Mi  with  i)eiiuiark,  relatini,'  to  i:aturaliza- 
lion,  and  iuakiii<^-  freemen  and  lKui^-e.s.<ios,  great  iV.'inds 
will  lie  edinuiltted  under  cnldi'aMe  passports, whi(di  may 
l)e  iutiu(hh'tive  of  di   Mute<  and  iiiiich  trnuhle. 

The  Swedes,  hy  tii-  (ivat\  in  i(i(il,aie  prohihited  car- 
ryiiiii-  pM. visions  to  the  enemies  ;  hut  hy  this  project  the 
Kill-  of  i'liissia  is  f,)  he  auihoii/,.,!  to  .lo  it.  IJut  if  it 
sli"uld  I.e  thouLdit  reasoiial.le  lo  lay  hini  under  a  re- 
sti''diil,  in  oidt  1-  (n  pi'c\eiit  di-^jMiies  ;il..iiii  the  meaniu" 
of  the  word  coiiiaitii-s  or  provisions  1(  diould  I.e  declart>d 
uhal  s[)ocie.s  of  provisions  shotiM  he  de(  nied  contra- 
hand. 

U  can  h(!  of  no  service  to  ns  to  exteml  lo  ticatN-  the 
King  of  I'ru.-^sia's  liberty  of  navigaiiMU  aiitl  couunerceto 
all  the  sea.s  over  the  uorM.  ;ind  paiticulaiU  to  those  of 
Asia  and  Africa;  but  possihiy  the  i\lii-  of  I'lus-ia  has  a 
vie^v  of  njaking  some  settlement,  or  establishing  an  In- 
dia company,  for  he  would  not,  I  conceive,  under  tlio 
loth  arti(de   of  (he  project,  be  enabled    to  trade  to  our 


OF    THK    LAW    Ol'    NATIONS. 


62i 


settlements,  or  traffic  otli 


erwise   tlirii   has   boon    tlicrc 


practised  bj  hiin  ;  and  it  it 


(!l).-Ci 


that  tl 


!oiit;li  by 


the  5tli  articlp  of  the  treaty,  in  IGG],  the  confederates 
are  not  to  furnish  any  aid  or  supjdy  to  tlie  enemies  of 
the  other,  yet,  by  the  Dth  article  of  the  ])r<)ject,  the  con- 
tracting parties  are  to  stipidate  not  to  succor  (he  ene- 
mies Ol"  <}ie  other  by  sea  only,  and  if  any  of  our  allies 
whom  we  are  cn,i:ii,s:cd  to  supply  with  (jur  natural  sea 
force,  should  be  at  wai-  witli  hiuK  tlie  compjvin--  with 
that  objection  n.ay  perhap-  l)e  deemed  a  contravention 
of  this  treaty. 

The  1  Itii  and  I3th  articles  of  the  project  oui^ht  to  be 
altered,  for  though  they  be  sinnlnr  to  th(>  J2th  and  1  fth 
articles  of  the  treaty  in  iCill,  yd  that  part  of  tlieni  re- 
lating to  the  punishment  therein  stipulated  to  be  inllict- 
ed  on  transgressors  ought  not  to  stand;  as,  I  conceive, 
his  Majesty  cannot,  liy  any  trcat_\-  make  his  suljjects  b- 
able  to  other  ]iunishments  tlian  wliat  the  laws  of  this 
ivingdom  do,  and  that  is  costs  and  (l.inngvs  lor  (he  of- 
fence, to  jje  recovered  in  the  adiuirally  coiul. 

With  these  observations,  I  have  taken  the  libertv  to 
send  their  Lordships  a  cojiy  of  the  iiistiuetious  which 
were  given  to  privateer^  in  I7n-i  (hawn  pursuant  to  the 
treaty  with  SwihU-u  in  Kxi  1.  and  the  couver.tion  with 
Denmark  in  IGOl  ;  to  wi:ich  is  annoifd  tlie  foiui'^  of 
tlic  oaths  and  passports,  as  they  may  probabiv  lie  useful 
111  the  con«ideration  of  the  project  ibr  the  ir.-it\-  pro- 
posed. 


En.  Sl.^u■.SG^. 


Doctors'  Commons,  .Imu'  I  1    ITo'l. 


(7.)  7/ie  A<lvocaie-<renefal,  ih\  Paul,  on   the  mer- 
(./uuitM  of  Afi/iorca  tmdiinj  with  AUjier^. 


Ill  1 

)i  j 


C24 


i 


OPINIONS    OF    EMINENT    I-AWYERS. 


To  the  Kij^ht  Hon.  the  Lords  Commissioners  of  Trade 
and  Pliuitatioii'*. 

May  it  please  your  Lordships; 

In  obedience  to  jour  Lordships'  commands,  signiiied  to 
nio  by  Tliomas   ILiU   Esq.,  rcferrinf^-  to   me  a   report  of 
several  merchants  of  Port  Mahon,  relatino-  to  the   trade 
to   the  kinrrdom  or  j^overnnient  of  Al^riers,   uhich  has 
been  submitted  to   Lieutenant   General    Blakeney,   the 
Lieutenani-Governor  of  Minorca,  containin<;  the  senti- 
ments of  those  merchants,  with  regard  to  the  trade  be- 
tween the  state  of  Algiers  :ind  that  island,  and  to  what 
might  be  most  advantageous  to  his  Majesty's  subjects  in 
general,  trading  to  the  Mediterranean;    which    havim,^ 
been  laid  before  their  Excellencies  the  Lords  Justices, 
and  by  them  referred  to  your  Lordships,  for  your  con- 
sideration and  report  how  far  the  re(piest  of  those  mer- 
chants may  l)e  C()m|)lie(l  with  agreeable  to  the  maritime 
law;  and  it  being  your  Lordshi[)s'  din'ction  to  me,   that 
I  should  report  my  humble  opinion  immediatelv  (the  af- 
fair admittiug  no  delay)  how   fir  tlie  matters  contained 
in  the  said  repo-t  are  consistent  with  tiie  maritim.'  law  : 
J    humbly  certify  your   Lordships,    that   1   conceive   the 
sevenil  propositions  and  regulations  recited  and  clearly 
set  f)rth  in    the  jaerchants' report,  are   reasonable   and 
highly  l)enelicial  to  trad<>  and    navigation,  and   no  AvaAs 
contrary   to   the  maritime  law,  the   princii)al  view,   pur- 
pose, ami  intention  of  that  law  ixMiig  to  encouia<ro  and 
protect  conuuerce  at  sea. 

There  are  at  present  articles  of  poaee  and  commerce 
between  Great  Britain  iind  Algiers,  ratified,  confirmed, 
and  renewed,  the  2Uth  of  October,  IV1<;.  The  present 
rules,  under  your  Lordships'  consideration,  are  as  bene- 


OK    THE    LAW    OF    .NATION'S. 


G25 


more  cx- 


Hrial  to  ti-iulo  as  those  already  e,sta))lislie(l,  and 

flicit  and  jiiain  ;  and,  cnnseciuently,  as  1  luunbly  appre- 

]iond 


merit  your  l.ordsliips'  approbation. 


G.  Pall. 


D 


0( 


tors'  Commons,  Julv  18,  IT-jO. 


(S.)  21te  opinion  of  (he  ^[(h'o(((t'  A 


itoi'-(,'c)i(^i((J.  Paid,  li lid  r.  (Dill  Mi 


Hiirneij,  and  Sullc- 
tiirrai/,  Iiav  far  -^iiIriKje 


■ira-s  due  on  a   Spa\ii's'i.   diip  and  curjo,  lint   had  b 
■slnuidtd  in  Xorf^  Carulina. 


it  II 


8ome   Spanish   vessels  liavin<^-  been  wrecked  on   the 


coast  of  North  Carolina,  it 


was  held  l.v  Dr.  (1.  Paul.  At- 


torney-General Ryder,  and  Solieitor  .^lurray,  tliat  noth 
ill,^■  was  due  as  salvaL^e,  tii()U;^h,  lor  jueie  h 


V)nv  111  saviiiLC 


the  eariiiies.  a  leasonable  cDinjiensalion  oiilv  was  due  ; 
that  the  .i:,()Vei-nor  ouiilit  not  to  have  asked  an\-  duty  or 
gratilieatioii:  they  think  the  eargo  is  in  the  nature  ot  a 
pledi;e  lor  tlie  lieiyht. 


J^ 


tun. 


4,1701. 


('.'.)   Ihe  opinl'jn    aj   tlf^  .Attn  m  ij   and  ,S, licit, i-( 
era/,    Yoike  and  lallot,  on  tli".  dm 
noiilralilii,  in  IGSO. 


r  Cli- 


nt i  HI  (if  t/i'  treat ij  of 


To   the    Ui-lit    lion,   the    Lords    C 


omiiussKniers    lor 


Trade  and  Plantat 


loll^. 


May  it  plea.se  \our  Lordships; 

In  olu'dii'iico  to  your  Fiordslii^js'  commands,  signilied 
to  !is  by  Mr.  Popple,  desiriiii;'  our  opinion  upon  the  le- 
gality ot"  tlie  I'ollowiiig  article  in  his  Majesty's  general 
instruction.^  to  his  several  goveinois  in  America,  relat- 
ing to  the  ti'caty  of  pein'c  ami  iicutralil  \  in  .Viuerica, 
maih'  between  Englaml  and  France,  in  ItiSli,  we  have 
considered  the  said  article,  which 


i--  in  thoe  won 


viz: 


<* 


li  -  n 


020 


OPINIONS    or    EMINENT    LAVVVERS. 


m 


"  Whereiis,  In-  tlie  fyih  and  0th   articles  of  the  treaty  of 
peace  aiul  neutrality   iu   America,   concluded   between 
Enghu'.d  and   France,  the  10th  day  of  November,  1080, 
tlie  subjects,  iuliabitants,  &c.  of  each  kinf^dom  are  pro- 
hiliited  to  trade  and  llsh  in  all  places  possessed, or  which 
shall  be  possessed,  l>v  tliein,  or  either  of  them,  in  Amer- 
ica; and  that  if  any  ships  shall  be  found  trading  contra- 
ry to  tlie  said  treaty,  upcni  due  ])roof  the  said  ships  shall 
be  confiscated  ;  luit  iu  case  the  subjects  of  either  kiii"- 
shall  be  lbrce(M»y  stress  of  weather,  enemies,  or  other 
necessity,  into  the  ])orts  of  the  other,  in   America,  thcv 
sliall  be  treau'd  with  humanity  and  kindness,  and  may 
provide  themselves  with  victuals  and  other  things  nec- 
essary ft)r  tlieir  sustenance  and  reparation  of  theii  ships, 
at  reasonalile  rates,  provided  tluy  do  not  break  bulk,  nor 
carry  any  godds  out  of  tlu  ir  ships, e\-jx)sing  thei.i  tosale, 
nor  receive  ;iiiy  luerchaudize  on  l)uard,  under  penalty  of 
confiscation  of  slii[)  and  goods;"  notwithstandinp:  which 
treaty,  we  are  -iveu  to  understand  that  an  illei,al  trade 
has   been  carried   on   betweeu  our  plantations   and  the 
French  settlements  in  America,  on  pretence  that   there 
is   no  law  in  force  agaiu>l  such  trade.     It  is   therefore 
our  will  and   [)leasare,    tliat  you   signify  to  our  subjects 
under   your  government,  the  pur^wrt    and  intent  of  the 
abovesaid  two  articles,  and  that  you  take  i)articular  care 
that  the  same  be  puiu'tually  o))servcd  and  put  in  cxecn- 
ti(m,  and  that  no  illegal  trade  be  carried  on  l)etween  our 
subjects  in  our  said 

under  your  govi'rnment.  and  tiie  French  .settlements  in 
America,  bv  anv  ol' oin*  sbii)s  of  war  attendiiiir 

,  or  by  any  other  Britisli  ships;  as  like- 
wise that  none  of  the  French  subjects  l.«?  allowed  to  trade 
from  their  said  settlements  to 


OF    TITE    LAW    OF    NATIOXS. 


627 


We  Imve  also  considered  the  annexed  extract  ot'tlie  ;"ith 
and  Gth  articles  of  the  said  treaty  of  peace  and  nedtral- 
ity,  referred  to   hy  the  said  instructions,   und  conce 


ive 


that  it  was  the  intent  of  tho.^e  articles  to  ^iy,.  power  to 
the  King  of  Great  Britain,  and  the  Most  Christian  Kinir, 
reciprocally  to  seize  md  confiscate  the  ships  and  cni-.i^oes 

ould 


belonginjr  to  the  suhjects  of  each  otli 
carry  on  a  trade  contrary  to  tl 


er,    wluch 


ai 


■ticl. 


seqnently,  that  ships  helon 


and,  coii- 


ging  tu  the  subjects  of  Kr 


with  th 

the  British   phintations  in  hivach  of  tl 


nice. 


eir  ladings,  that  shall  he  found  trad 


nig  111  ;iu\-  () 


f 


lose 


arti 


be  liable  t 


cle 


Mill 


obe  seized  and  coiideiiined 


I  some  of  liis  Mi}j- 


esty's  courts  within  such  plantation  I'or  tiiat  Ciiii-c  :  and 
that,  on  the  other  hand,  ships  and  their  cargoes  helor.g- 
ing  to  British  subjects,  who  shall  be  found  Iradin--  in 
any  of  the  French  plantations  in  breach  of  tl 


le  sai( 


tides,  will,  in  like  mannc 


r,  be  sultject  to  seizure  and  c 


fiscation,  within  such  French  i)lan(;itioii  ;   hut 


ar- 
on- 


hend,  that  it 


was  not  th(>  intent 


that  either  of  tl 


we  ap[)re- 
tr''nty  lo  provide 


le  contra   ting  power-  slionld 


■ei/e  a 


ml 


ii'ir  own    subject-:.  1 


or 


confiscate  the  ships  or  g(  ds  of  tl 
oontravoning  the  said  articles  ;  and  ifHich  intention  liad 
appeared,  Ave  are  huiul.ly  of  opinion  , hat  it  could  not 
liave  had  its  cllect  with  re-peet  to  lii-^  Maj.jstv's  sub- 
jects, unless  the  sai.i  articles  had  been  eoiitii  iiied,  either 
by  the  act  of  Parliament  of  (ireat  Ibilain,  or  by  acts  of 
assembly  within  the  respecti'-e  plaiit:itions. 

As  to  riie  above  mentioned  instiuetion,  there  appears 
to  us  notiiing  illegal  in  the  teriiK  of  it  ;  but  considering 
the  distin.-tion  arising  upon  the  s,ii,|  two  articles  of  the' 
tieaty,  wlii(di  we  have  alieady  stated,  we  submit  it  to 
your  L'jrdships'  consideration,  whether  il  mav  not  lie 
expressed  more  explicitly  an<l  particulurly,  in  order  to 


) 


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628 


OPI\I0\S    or    U.MIXEXT    I  AWVKKS. 


!f  I 


prevent  mistakes  in  earning-  tljc  .same  into  execution  in 
the  several  case.s  that  nia\-  iiappen. 

June  Z.  1728.  p.  Yorke. 

C.    Talbot. 

(10.)  'I /it  opinion  of  the  Atlorncij  and  Solidior-Gcu- 
cral,  Jliphr.  an  >  Jli/rrdij,  on  f'lc  ■sain':  svljxi. 

To  the  Ili-ht  JI(,ii.  tl)c  Lords  Cumniissionors  for 
Trade  and  Phnitations. 

Ma\-  it  please  yoiu  Lonl.ships  ; 
In  pursui.nee  ofvour  Lorusbip.s"  desire,  signified  tons 
by  Mr.  PownalK  in  his  letter  of  the  3Uth  day  of  March 
last,  inclosing  a  copv  of  uu  instruction  given  to  the  gov- 
ernors of  his  Majesty's  eolonie.s  and  plantations  in  An;?r- 
iea,  relative  to  the  -nh  and  Cith  articles  of  the  treaty  of 
peace  ai;<L  neutrality  in  America,  concluded  between 
England  and  Fiance,  the  ICth  day  ol'  November,  1G8G, 
desiring  onr  opinion  u  hethei-  the  said  treaty  is  now  of 
any  for.;-  or  validity  :  \^  r  have  taken  the  said  articles 
of  that  nvafy  iido  onr  consideration,  and  are  of  opinion 
that  the  saiil  licaty  is  now  in  force. 

J/'/vYV,  ITVJ.  I).  i;vp,...,i. 

W.   Mlkh.vv. 
(II.)    'Ihe  ojnnion  of  //„  Atfnrnri/  tnul  ^h/irif.,);  Xar- 
t'>ii  an</  />r  Gir}j,  on  the  same  suhj  ct. 

'I'o  ih..  Kivlit  Hon.  till   Loi(lsrouiini.ssionersforTradt> 
and  I'lanlalions. 

May  itplea.se  _\our  Lordships  ; 
In  oli.'dicnrc  (o   y,,ni-  I,nnM,i|,s'  eontniands,  sigaiii,.,! 
to  us  ly  M,-.    i>uwn;dl  s    Irtirr    of   tii.'^Sili    of  .Ianua|■v 
^ast .  i  lit !  iiia  I  i  ng  that  .\oiir  L,,i-,M,ips  had  under  yoir  con- 
Bideration  some  papers  ri.lutn  c  to  a  ucgociatiL  i  with  the 


OK    THE    LAW    OF    NATIONS. 


629 


court  of  France,  respecting  the  freedom  of  navi<?ation  in 
the  American  seu.-^,  iu  which  some  doubts  have  occurred 
as  to  the  existence  or  non-existence  of  the  treaty  con- 
cluded between  the  two  crowns  on  the  lOtb  of  Novem- 
ber. 108G,  commonly  called  the  treaty  of  neutrality,  and 
(hat  it  is  youi-  Lordships'  pleasure  we  should  take  the 
said  ttvaty  into  our  consideration,  and  report  our  opin- 
ion whether  the  same  is  or  is  not  now  in  force:  we  have 
taken  the  said  treaty  and  Mr.  Pownall's  letter  into  our 
consideratioiK  and  are  humbly  of  opinion  that  the  same 
is  not  no\v'  in  force. 

Flr,  Norton. 
^V^l.  De  Grew 
TJncolirs  Inn,  Feb.  12,  1705. 

^(12.)   '//,-'  n.ihii'm  of  the  Jdvocatc-Ckneral,  Sir  James 

iVarri  t.  on  f.'tc  mnv  suhjwt.  , 

tSir  ; 

In  pur.-uaiice  of  your  letter,  by  ordei  of  the  Lord.s 
<'ommi>siuneis  o|'  trade  and  i)lantati()ns,  I  have  taken 
into  coiisideratiou  the  question  with  which  I  am  honor- 
ed, whether  thi'  treaty  of  lOSC),  cmmonly  (>alle(l  the 
treaty  of  neutrality,  is  a  subsistin-,'  treaty  .'  i  have  con- 
sidered Hie  saiiH'  with  great  attention,  and  it  does  not 
appear  to  me  that  t\u  reaty  of  KiSG  is  not  a  sub.-isting 
treaiy,  but  that  it  nri;/  li,  tn.si.st,,!  ,ii>,ii  to  be  so,  upon 
the  -iniind  of  implication  of  words,  and  the  e(|iiituble  in- 
ter[)retaiioii  of  the  subseiinent  treaties  which  have  been 
i'nrmally  renewed,  by  the  treaties  of  Aix  la  Chajielle. 
■  iini  tbr  la,~t  definitive  treaiy  of  W'lsaiUes  ;  and  as  tlie 
treaty  of  ICSil  i<  siipporteil  by  the  general  nature  of 
sueli  eoM\enlions,  and  by  acts  of  aekiiowh-dgment  of 
the  conlraetiiig  partii's  in  tlie  intrrnie(bate  jieriods,  and 


n^ 


1 

*   I 

i 


630 


OPIXIONS    OK    EMINENT    LAWYERS. 


•i 


M, 


farther,  that  the  treaty  of  IGSG  luiving  not  been  special- 
ly abrogated,  ^vhat  is  not  abrogated  may  be  understood 
to  subsist, 

1  observe,  thnt  the  treaty  of  1G8G  is  a  subsisting  trea- 
ty,  not  otlierwise  than  it  can  be  maintained  upon  some 
one  or  other  of  the.se  reasons,  because,  on  the  other 
hand,  It  appears  that  none  of  the  subsequent  treaties 
have  noDiiiially  revived  it. 

These  are  the  general  outlines  of  the  prohahle  argu- 
ments  lor  the  validity  of  the  treaty  in  question,  and  tho 
objection  against  it,  all  which  I  shall  submit  in  the  fid- 
Je.st  maimer  I  am  able,  for  their  Lordships'  consideration  • 
because  tho  admitting  that  the  state  of  commerce  witli 
France,  in  Auierica,  remains  unsettled  by  the  last  gen- 
eral  tixMty,  leads,  as  1  humbly  a].prehcnd,  to  largo  con, 
)<equences.^ 

On  the  general  \iew  (,f  the  question,  I  conceive,  that 
trcMties  beiug   in  their  nature   cwijMt.ct-^  ■^upci^cdlng  th^ 
common  mayr,  which  >\  sfricfh/  .^peakin^,  the  law  of  ua- 
tio».,  by  particular  stipulation.s,  are  to  be  argued 'upon 
the  looting  of  all  obligations  which  arise  from  contract 
oxpre..sed  or  tacit,  whrther  qua^iur  contractu,  or  neccs- 
.vudy  .u.pl„.d  by  gviirral  uonls  of  comprehension;  and 
the   pnnriphvsnrthe  ^\^\\  Viss,  drnhlo,alio»ibu.,  which 
IS  the  law  adinittPd  by  ail  nations  '.n  Kurope,  by  most  in 
the,r,lom..slic,and  by  all  lu  national  q.iotion.s,  must  be 
allowed  to  arbitral.,  iu  .hviding  (he  vali.litv   and  exist- 
once  of  a  publi,.   t,v;,ty,  by   (h..   same  rules  and  rea.son- 
ings  as  wlien  Miiplicd   i,,  ,u,v  other  contract  of  private 
lit'"-      I  imagin..,    th..,(.f,„v,  that    tlie  ••ivilians  of  France 
will  admit  til..  rull.,wing  prin.iph.s  to  be  just :   "  that  tho 
groun.l  on  ubl.h  tb,.  In,-....  of  ..very  .•ontmct  relies,  i.s  a 
mutual,  appaivnt  coi.M.nt.  un.l  an  ...piitable  ..bjoct  incoii- 


OP    THE    LAW    OP    \.\TIO\S. 


G31 


tracting."     Words  or  characters  are  merely  used  to  cou^ 
vey,  by  marks  or  sounds,  the  ideas  of  consent,  an.i  to 
preserve  the  memory  of  compacts;  now  the  end  thu«  be^ 
ing  pnncipally  to  be  considered,  and  the  means  bein- 
regarded  only  ar- declarative  of  the  end,  if  by  anv  other 
means  than  by  strict  wonls  a  contract  is  implied   it  is 
undoubteuly  valid  whenever  there  appears,  from  anv  acts 
or  reasonable  interpretation  of  .i.irns,  an  acknowk-d.^ed 
consent  and  ecpdtable  foun.lation  of  contracting,  these 
circumstances  making  the  very  substance  of  a  contract  ■ 
the  instances  in  the  Roman  law  are  many  and  obvious' 
that  obligations  may   be   entered  int.,  bv  implication' 
the  consequence  I  mean  to  draw  .s.  that  if  obli.^ations 
can  be  entered  into  by  implication,  and  so  con)menced 
they  maybe  revived  by  implication,  whi,  h  is  a  stron^^er 
case:  they  maybe  reviv.V   p_,   i,Hi,ii,,,tion,  a   fhrt^.ri, 
with  more  facility  than   mey  can  be  commenced  •  be- 
cause, in  the  case  of  hr.t  contracting,  the  contract  is 
^tncfijari%  and  re,  integm  ;  but  in  the  caso  of  a  revival 
there  IS  a  basis  and  better   ground   of   implicati.m  •  for 
the  general  sense  of  (he  c.,ntra<-t  o„ce  bcinir  declai-d  by 
(acts  correspomling  to  it,  is  perfccliv  nn.l.rst.uul,  so  that 
It  want.s  fewer  words  to  revive  a  cnvenlion,  than  first 
to  contract  it.     A  contract,  also,  revives  fron>  the  very 
nature  of  the  cau.se  ceasing   to  ..perato  whi<d.  had   sus- 
pended the  force  of  the  conventi.u,.  and  more  .^specially 
It  the  revival  is  confirm,.!  by  any  ellW^tual  acts  of  a  ..ul". 
nciei.t  continuance  in    time  to  mark    publirit  v  and  con- 
sent of  the  contracting  parties;  and,  al.,.-.,  ,.,il.  if  d,,.  ob- 
jects of  good  faith  arc  con.Tni.Ml  in  the  r..vival       Q>n,l 
rrfnf.  said  the  great  Roman   lauycrs,  a>,  mU.  juyudns 
fohnUatrm  -suam  <la-lar(t,  an  nhw^ . t  ftu y/.v /     And  w hen 
they  distinguished  l)elween  obligations  and  stipulation.s, 


I 


>  i  V  ^ 


H 


II 


r  I 


032 


OPINIONS    OK    EMINENT    LAWYER.'. 


they  strongly  laid  doAvn  the  doctrine  of  obligatory  im- 
plications. Xeipie  ■Kiijjtiira  omriimodo  ojtxs  cs*.  ul  ,si'/>- 
staittiiim  capiat  ohiu/a.io,  sc</s'ifi-it  concendrc.  A  Iter  al- 
tore  oblh/atvr  in  cd  qiiod  alteram  alteri  ex  l>ono  et  ctjuo 
pra-stare  opx)rtei.  Thi.s  rca.soiiing,  applied  to  the  validity 
of  the  rreaty  of  1G8G,  acquires  fresh  force,  by  considc)-- 
ing  the  nature  of  a  var  under  the  circumstances  of  the 
several  powers  of  Europe,  and  the  comprehensive  stipu- 
lati(  ns  of  the  definitive  treaties  ^ubsequent  to  it.  and 
bearing  relation  to  those  circumstances. 

A  stress  is  laid  \\\m\  this  point;  for  in  debating  any 
question  upc  n  treaties  arising  between  nation  and  na- 
tion in  the  age  we  live  in,  it  is  necessary  to  keep  in  view 
tlie  general  state  and  condition  of  tlie  contracting  pow- 
ers, fro-.n  when-e  the  arguments  of  public  law  can  only 
be  drawn  Avith  any  just  decision. 

AMthout  or.r  revolving,  theref!)re,  for  cxani[)les,  the 
ancient  history  of  nations  in  a  less  civilized  state  of 
mankind,  we  may  d.'termine  upon  points  of  pul)lic  law 
in  a  dilfereut  Avay  than  tiiat  in  whi.'li  (u-otiiis  Pullen- 
dorf,  anil  other  elal)orate  writers  of  liolland  and  (ler- 
many  have  doiu-  it,  amassing  their  prools  from  tiie 
Greek  and  Uoinan  historians,  orators,  and  po -ts,  from 
tragedians,  comic  authors,  and  fathers  ol'  (he  church,  a.s 
eciual  authorities;  bnt  the  decisi  s  of  pulilic  law  are, 
and  nmst  be  different,  in  diflerent  ages  i^'i  mankind.  The 
systtMU  ol'  nations  concerning  their  reci]irocal  ritrhts 
■whether  ly  usage  or  treaty,  dejiends  upon  llieii-  man- 
ner.-'. A\'!icn  I  s])eak  of  the  ])rpsent  age,  I  mean  \\\\  in- 
terval of  time  from  the  treaty  <)f  Westphal'a  down  to 
the  last  defniitive  treaty  of  Versailles,  which  mav  be 
called  truly  th(>  age  of  negociation,  of  which  kind  of  in- 
tercourse and  connections  the  Greeks  and  Komans,  con- 


OF    THE    LAW    OK    NATIONS. 


633 


tending  rilways  with  barbarous  nations,  had  vorv  i  ritial 
Mictions ;  ('rawn  liowoveiv  from,  and  ada])ted  to.  "the  con- 
litiou  of  (lieir  rivals,  and  the  rest  ol  mankind,  in  tlio.^e 
ages.  Jn  the  present  age,  as  war  is  commenced  on  dif- 
ferent principles  fro.o  Ihe  wars  of  anti.rnity,  so  it  ends 
with  different  principles;  in  l^otli,  more' to  "the  honor  of 
humanity. 

The  public  law  of  Europe  aldiors  the  sanguinary  oh- 
jectof  ancient  wars,  universal  slavery  or  extirpation.— 
Every  war,  in    those  time«.  is  cnn<i,icrc<l   l,„t  ns  tir,  ap- 
peal to   the  rest  of  the    pnwei's  of  E  n-ope,  .nn^l  is  but  a 
temporary  exertion  of  force  to  decide  a  point  of  intcM-est 
which  no  human  tribunal  can  determine-  thus  it    is.  in 
its  nature,  but  a  A->/!>pfi)^,'  of  the  other  rights,  not  in  con- 
(est,  which  existed  between  the  belligerent  powers  reci- 
procally before  fhe  war:  when  we  renso,,.  therefore,  that 
a  wnr  being  ended,  the  public  reciprocal  rights  ami  ol,li. 
gations,not  specially  abrogated,  but  suspended,  emerge, 
and  acrpiire  their  former  vigor  and  activity,  the  reas-m- 
•  ng    ){  '•(  is  just;  is  so,  because  it  is  .•..n,>istent  witli   tlie 
relations,    a.id  arises    out  of  the  natui-"  (4'  filings.     Wo 
Jit'ed  not  urge    the  necessity    of  jnrti.'ular    stipulations 
to  revive    .su.di  obligations:  it  is  the  very  e-enn- and 
M(>cessary   idea    of  recoiiciliatKm,    iniplicd    of  course,  if 
not  declared,  in   every  definitive  treaty  of  paciilci.tion, 
that  the  commercial  and    friendly     iutercour.se    of  the 
•  •ontractingi)()wers  is  replaced    in  its  former    state,  but 
it  is  usual  in  all  delinitive    treaties,  thitt   all  fhe  n<'(s  of 
hostility  which  have  been  comtnitted    oi:  ,.ither    si,i,.  )„ 
suspend  tlie  intercourse  «>f  thecoiitra.^tinir  pnrf  ies.  sh.mld 
be  .ledared  to  be    forgot,  and    to   be    couM.Jered  roninw 
HO),  arr,,,,^,  which,  when  expressed  in   tcnns.  ,-an  inean 

nothing,  or  it  nuist  mean  this,  that  no  conseipi-nce  shall 
hi 


.  IM 


il 


i' 


634 


OPINIONS    OP    EMINENT    LAWYERS. 


be  drawn  hereafter  from  the  past  contest  to  the  prejudice 
of  any  reciprocal  rights  existing,  before  iwfc  expressedly 
deviated  from  by  some  new  stipulation. 

On  this  general  ground  it  is,  I  mean  a  restitation  of 
reciprocal  rights  in  integnirn  aftA-  a  war,  implied  as  well 
as  expressed,  that  the  jus  postliMinii,  which  never  has 
been  called  in  question  in  any  period,  reverts  to  creditors 
relative  to  the  debts  due  to  them  from  tlie  subjects  of 
the  belligerent  state,  contracted  before  the  war,  during 
which,  although  the  right  of  the  creditor  to  recover  the 
same  is  suspended,  yet  it  is  not  annihilated  by  any  con- 
fiscation, but  he  may  pursue  and  obtain  his  demand  after 
the  war.  New  the  same  restitution  in  integrum  of  na- 
tional rights  and  obligations  is  as  reasonable  and  just 
between  the  respective  governments,  as  it  is  universally 
allowed  to  exist  between  their  subjects,  one  with  anoth- 
er; for  the  revival  of  all  obhgations,  public  as  well  as 
private,  stands  undoubtedly  upon  the  same  analogy  of 
justice. 

But  there  is  still  a  more  striking  instance  of  all  obli- 
gations not  entirely  smking  in  a  wnr.  when  the  creditors 
of  one  belligerent  party  are  the  subjects  of  the  other 
hostile  government,  and  yet  preserve  llu>  right  to  their 
property,  by  the  law  of  nations,  flagrante  l>elh,  witliout 
danger  of  confiscation.  Such  is  the  force  of  those  ex- 
alted principles  of  public  law,  which,  in  these  hnppier 
ages  of  human  society,  restore  their  proper  empire  over 
the  minds  of  men  to  good  sense  and  good  faith,  with  a 
force  superior  to  'he  passions  or  prejudices  of  naticms  long 
accustomed  to  be  rivals  ;  and  such  I  conceive  to  be  the 
law  of  Europe  in  its  present  state,  which,  whenever 
these  doctrines,  founded  in  reason  and  humanity,  shall 
cease  to  prevail,  will  fall  back  into  all  the  gloom  of  a 
barbarous  condition  of  ignorance  and  despotism. 


OP    THE    LAW    07    NATIONS, 


635 


The  war  becween  England  and  France  which  follow- 
ed th3  i-evolution,  suspended  Oie  commercial  treaty  of 
iG8(5,  called  the  treaty  of  neutrality.  The  treat}^  of 
peace  concluded  at  Ryswic,1697,takes  no  notice  of  it  nom- 
inally,  bul  revives  it,  not  only  by  the  general  quality  of 
a  treaty,  putting  a:,  end  to  the  war,  but  by  the  strongest 
term,  of  a  general  fomprehonsion,  restoring  the  com- 
merce ot  the  two  nations,  reciprocally-,  to  the  state  in 
which  it  existed  before  the  war. 

The  o-  ch  article  ii,  lU)e,'  sit  usus  navigationis  et  com- 
mcrcii  inter  subdif^KUtriusquc  dominationis,  rrgumprout 
jam  olim  eraf  tempore joacis  a  ante  nuperrimi  belli  denun-. 
ciafionem. 

The  comuierce  of  the  two  nations  was  declared  free, 
just  in  the  same  degree  as  it  was  free  before  the  war, 
and  of  course  prohibited  in  the  same  de/'ree  ;  so  Ions  as. 
in  our  reason!  11 L',  iMtry  affrmation  carries  with  it  the 
necessary  negati'n  of  us  opposite. 

Thus  was  the  treaty  of  1G8G  revived,  by  implication, 
in  the  terms  of  the  treaty  of  Ilyswic  ;  but  it  was  as 
strongly  revived  by  reciprocal  acts  of  acknowledgment ; 
and  both  nations  adhered  to  the  treaty  of  1G8G  till  the 
war  of  Queen  Anne.  By  th  war  the  vigor  of  the  treaty 
of  1G8G  was  again  suspended  till  the  general  peace  of 
Utrecht,  and  revived  again  in  the  same  manner  as  before. 

The  7th  article  is,  la  uav'Kjation  et  le  commerce  seront 
Uhres,  (Hire  le-:  svjvt-i  de  leiirs  inajestea,  de  ineme  qiCils 
Vont  toujour s  etc  en  terns  de  paix,  ct  avant  la  declaration 
dc  In  <jti(  rrc. 

The  separate  treaty  of  commerce  between  Great 
Britain  and  France  at  the  peace  of  Utrecht  was  confin- 
ed to  Europe,  which  shows  that  both  parties  considered 
the  treaty  of  1G8G  as  recipvocally  subsisting  in  Ameri- 


t 


63fi 


OPIMOVS    OF    EMIXEXT    LAWYERS. 


ca,  for  otherwi<e  they  certaiuly  would  have  provided  for 

.        I    u.  a  u-.aty  the  mn.t   comprehensive    in  hi.toiy,   and 

ho  ,u..t_aeha...ive  in    developing  and  fixing  all  the  in- 

k)re«t,sol  the  belligerent   parties,  except  the  last,  since 

•      tJie  ueat_\-  of  Westphalia. 

It  must  he  .judged  that  both  France  and  England  then 
cuns.dered  the  treaty  of  1080  as  a  subsisting  treatv,  not 
only  .or  the  reason  i  have  already  given,  b^t  ibr  Jthers 

tl  r  r       f  f "  ^""^'"'^^    ''''''y  ''  Utrecht  refers 

tic    case    ofnnitual    confiscation  of  ships,  in  America 

-I-hlK.abeenn.uleintin.eofpeaceUstprobabi:: 
on  the  ground  ol  the  treaty  of  1080)  to  commissarie;- 
It  mus  ,ne:.v  or  it  could  n.ean  nothing,  that  the  deci^ 
-ion  of  these  conun.ssaries  should  be  n^ade  on  the  basis 
of  so.ne  treaty,  and  no    other  treaty  could    possib'v  be 

-      oconten,„h,tio.  of  the  contracting  parties,  buUhJ 
c   t,  o!  connn.r,.o  and   neutrality  of  IdSG,  subsistiu. 

at  the  tune  of  the  capture,   and  the  Gth  article  of  it  re! 
^  :;;  :\r"'7;!''"^  f  ^^^'I- -^  -'-goes  in  An,erica. 

.  >,l.evaiKi.ty  of  the  treatv  in, uestion  appears 
1'''""'.  •"•-unvledged,  u,  fact,  by  no  step  bein./tai.en 
-  c.n.travenf.u  to  it  by  France  and  England  ^^Z 
long  a  period  as   from  1713  to  17-V      If  ».  ■ 

1..0    lu.uv  .,rifi«,i   ,,,„„.„,,  „,^,^   ,„„ij^,.„| 

'■Itl.-varcnr.4.     Tl„.    .n-.Uv  „r  Ai.   U  ;:|,.,„    ; 
ok,K,„„t,eo„r,l,i..  ,,.„.,,,,,,,,,,,,,,,,     ,,,,,,,,,,, 
1  »u  ..,.|,Matro.UH.s.     TiK.  ,„,,.,•  or  1«»0  «.,  ..ck 


4- — i— H— 


OP    THE    LAW    OF    NATIONS. 


637 


The  last  definitive  treaty  of  peace,  like  that  of  Aix 
la  Chapelle,  does  not  nominally  revive  the  particular 
noaty  ol  1G80  ;  but  having  first^  nominally,  revived  the 
great  general  treaties,  in  whieli  the  interests  of  the 
other  powers  of  Europe  have  been  settled  at  different 
penods  It  goes  on  to  renew  all  other  treaties  whieh 
^ubs,.stea  between  the  contracting  parties  before  the 
war  :  thus  a  distinction  clearly  appears,  that  some  treaty 
.s  understood  to  subsist,  which  is  not  named,  and  which 

hat    he    treaty    understood  is  relative  only  to  the  in- 
erests  ot  the  two  contracting  parties,  separate  from  the 
est  ot  then-  alhes  and  confederates,   who  were  parties 
0  the  treat.es    which  were    revived  by  name;  ,so  that 
•    here  .s  a  very   reasonable  ground  of  implication,  from 
the    erms  ot  the  reviving   stipulations,  that  the    treaty 
ot   1680  was  meant  to  be  revived  as  a  subsisting  treaty 
n-  the  last  deiini  .ive  treaty.     But  upon  the  general  ana- 
logy It  ,s  a  nuich  stronger  case  that  a  conunercial  treaty 
should  sui,s,st  by    implication,    than   tliat  a  subsidiary 
trcaty  of  alliance,  which  I  take  to  be  out  of  doubt,  shoui;^ 
^nbsi,.t  by  implication,  though  made  Ibr  a  limited  time 
-  completely  as  by  signing,  sealing,  and  tbrmal  ratifica^ 
t.on,  provided  the  parties  do  any  act  declarative  of  their 
consent  to   the  renewal,  which  as  I  observed    before  is 
tin.  groun.lon  which  all  contracts  are  supported.     If  one 

I-  V  ua.,,,,,,  the  subsidy  tbr  another  year  or  mo" 
aixl  .b.  o  her  accepts  it,  it  is,  undoubtedh-  .r  .nbsistin.: 
^■eaty,  no  withstanding  that  the  term  limited  is  expired" 
^ow,  ,n  the  case  of  the  validity  of  a  general  treaty  of 
;;"-'■"';-;^  tl.e  .mplicatioa  of  validity  i<  stronger,  becm.se 

'e,v  being  no  limitation  of  time,  nothing  el-pires;  but 
here  ,s  only  a  suspense  of  the  obligation,  during  the  in- 
t>.rval  ol  a  war. 


*♦ 


1 11 

f  4 . 


638 


nlMMONS     (11-     ICMINKNT     r.AW^KP.g. 


II  I 


The  general   stipuliitions^  ol"   revival  in  the  deHnitivc 
treaties  deserve  particular  attention,   bccanse  under  the 
terms,  ■•  I'enewin-;  all  subsisting  treaties."  it  is  plain,  that 
they  do  not  subsist,  because  they  are  renewed  ;  but  they 
are  renewed  in  words,  but  snbsi.st  beeraise  the  war  is  at 
an  end.     This  usual  stipulation  would  be  nugatory,  if  it 
revived  nothing  by  implic.ition  of  this  expression  ;  and 
it  would  be  redundant,  if  it  did  not  attempt  to  show  that 
it  did  not  mean  to  abrogate  specially,  or  by  any  impli- 
cation, but  on  the  contrary  to  give  the  utmost  force  to 
that  which  was  already  nnderstoood  to  subsist  gener- 
ally. 

Upon  the  whole  matter,  for  some  one  or  all  of  these 
reasons,  or  for  better,  which  may  occur  to  the  contem- 
plation of  their  Lordships,  and  the  wisdom  of  his  Majes- 
ty's administration,  under  the  present  circumstances  cf 
the  British  and  French  colonies  in  America,  I  have  the 
honor  to  submit  that  tiie  treaty  of  1686  maybe  insisted 
upon,  as  a  subsisting  treaty,  not  only  because  it  is  re- 
vived by  a  strong  implication  of  words  and  facts,  but  for 
that  it  may  be  understood  to  subsist  because  it  never 
was  abrogati>d. 

Ja.mes  M.vrriott,  Advocate-General. 
FJ'.  15,  176-'). 

If  the  King's  advocate's  last  report  on  the  treaty  of 
1686  is  not  circulated,  he  begs  the  favor  of  Mr.  Pownall 
to  niter   tlie  passage,  page  8,  beginning  at  the  words, 
"  But  there  is  stilt  a  more  striking  instance,"  &c.  &c. 

Instead  of  it,  read  as  follows,  "But  there  is  still  a 
more  striking  instance  of  all  obligations  not  entirely 
sinking  in  a  w>,i-,  when  the  subjects  of  one  government 
are  the  pul)lic  creditors  of  the  other,  and  yet  these  alien 
enemies  preserve  the  right  to  their  proiierty  in  the  pub- 


OK    TIIF.    I,AW    nv     NATIONS. 


639 


lie  funds  of  the  hostile  government,  by  the  law  of  na- 
tions, in  the  midst  of  the  war,  without  confiscation." 
Doctors'  Commons.  Feb  21,  17G5. 

(13.)  'Jhe  opinion  of  the  Att')rtiey-Gcnrr(il,Pmlt  on  ike 
question  wUcthcr  Gnadaioupe  became,  in  1759,  a  hritieU 
is'land. 

By  the  book  of  rates,  annexed  to  the  act  of  tonnage 
and  poundage,  12  Car.  2,  C.  4,  and  several  subsequent 
acts  of  parliament,  the  duties  payable  in  Great  Britain 
by  British  subjects  upon  the  importation  of  goods,  b.^Ing 
the  produce  of  the  French  plantations,  are  considerablv 
higher  than  for  the  like  goods  if  produced  in  the  British 
plantations. 

CW.--The  articles  of  capitulation  entered  into  on  be- 
-lalf  of  his  Majesty  with  the  inhabitants  of  Guadaloupe 
are  inclosed  :  the  seventh  article,  by  the  tenor  of  it 
seems  intended  only  to  operate  upon  such  duties  as  are 
payable  upon  the  island,  besides  which  the  sixteenth 
and  twenty-first  seem  to  be  t)..  only  articles  relative  to 
trade. 

AT   2?._ii^  ti,,,  ^.^^^,   ^^20,  the  French  and  En-lish 
by  consent,  took  a  joint  posse.ssi.m  of  the  i.sland  of  St' 
Christopher's  in  America  •  about  the  time  of  the  revolu- 
tion  the  French  drove  out  the  English.     In  the  year 
1690,  or  thereabouts,  the  English  recovered  the  island 
and  had  entire  possession,  which  thev  continued  until 
It  was  ceded  to  them   by  the  peace  of  Utrechi  in  1712 
It  appears  by  the  book  of  rates  at  the  custom-hou.se^ 
that  sugar  imported  into  Great  Britain  from  St.  Christo- 
pher's, after  the  year  1090,  and   before  the  year   1712 
paid  the  same  duty  as  sugar  imported  from  the  British 
plantations. 


it    '• 


11  *;'  I 


640 


OPINIONS    OF    EMINENT    L.UWEKS. 


Qume—ls  the  islund  of  Gi'adrl,)ui)o  to  ho  considered 
as  a  pLintation  or  territory,  to  his  Majesty  heh)n,lrin^r,  ^r 
in  his  possession,  within  the  nieanin.ir  of  the  act  of  nav- 
igation, and  the  other  hiws  before  recited;  and  is,  or  is 
not,  the  produce  thereof,  when  imported  from  thence  in^ 
to  Great  Britain,  to  be  charged  with  tlic  same  duiv  as 
li  it  was  imported  from  his  Majesty^s  IJritisi,  phmta- 
tions  ] 

r  am   of  opinio,,,  f,.,,,,,   the    best  consideration  I  can 
give  this  case,   that  (;uadah)npe  must  be  considered  as 
one  of  the  Bi-itish  phuitations;  for  notwithstan.;;,,-  th<> 
advantageous  ter.ns  that  aregrante.l  t..  the  inhabit'ilnfs 
the   i.ian.l  is  clearly  in  his  Majesty",  possession.     ThJ 
inhal)itants  are  di.sarme.l  and  in  a  state  of  subjection  to 
his  Majesty  and  his  tr..ops;  all  new  commissions  are  to 
be  taken  nnder  his  Majesty,  and  all  acts  of  justice  ar.  to 
rnn   in    his  name;   he  is  i„  actnal    possession  of  all  the 
public  revenues,    and    all    tb-    ti-ade   of   the    islan.l  hns 
changed  its  course,  pa.ssino-  n„w  in  English  bottoms  only 
to  (neat  l{,-it,.in;  all  which  pr.rticulars  being  consi.lered 
I  must  con.h.de  that  this  island  is  now  a  plantation  be- 
longing in  his  Majesty,  and  in  his  possession.  i„  ,-1.1,1  ,.f 
the  Crown  oCFnoland;   thnt  it  is  an  Knjrlisj,  a,..'  a^Hrit- 
ish  plantation,  within  the  mrani,,./ an.l  intent  of  the  act 
as  refenv.l  to  :   the  f,Mvat  objection  to  this  opi„ion  aiis^s 
from  the  condition  of  tin-  present  irdiabitanK,  who  rojoy 
priviU-rs.    under    the    artidrs,   hardly  ...upat  il,)-   with 
the  statP  of  snbjeets;   but  that  has  no  ^nvat  weigbt,  if  it 
be  con.«ideiv.l  that  tln-se  aie  pei-.sonal  privileges  conlin.'d 
only  to  the  pres.Mit  iidiabitants,  who  are  nvstrained  from 
alienating  to  any  but  th,-  Kin^'.s  subjcef-,  and  the  <apit- 
ulation  is  made  not  with  the  French  king,  but  only  with 
the  inhabitants.     The  right  .,f  sovereignty,  therelbre,  is 


OF    THE    LAW    Ol'    WTIO? 


041 


vrholly  chanojcfl,  and  the  whole  island  is  the  K 
quisitiou  In-  coniiuest.     If  any   inhabitants   shonld  di( 


ins;  s  ac- 


witho'.it  heirs,  his  lands  would 


oselioat  to  the  Kinu".     If 


any  oftli  i  i  should  levy  wars,  or  plot  th(>  Kin-'s  death, 
tliey  would  h."  anil ty  of  high  treason,  and  to'mustvate 
iliis  I'urther.  if  tlu;  inhabitants  should  nirree  to  sell  all 


their  posse.-^sions  to  Kn<-lisl 


diately.   without  aiiv   further  treat 


nnen,  the  island  would 


unnie- 


come  w 


y  or  eaiiitidation.  be- 


stood  them 


holly  Kuolish.      The  inhabitants   plainly  un.l 


or- 


^elves  transferred  to  his  M 


nd   therefore  ha\e  stipulated  for  tl 


i.jesty's  doiui 
rivil 


nions. 


u'  like   1) 


trade  a 


s   a; 


allowed  to  the    r.'st  of   his  ;\[ 
i>  is  irranteil,  with  a  itroviso  that  tl 


eires  m 


.i''els;  anil  th 


ly  with  the  acts  of  trad.        f 


i|esi\s   sul)i 


11  ii  word.  th( 


-'|l>|ccts    iii;iv  be  itrtter 


H'V  eom- 
P'lition  of 


luMi'    th' 


"'.'  worse  ill  dill 


erciil 


"piestiou  is  .iliiiiit 


pai1> 


lUt 


o  with  th 


'oxorei-nty.  .'ind  has  nothini 


•  '  iinviicL'c;  hi- 


M 


b>v;rant  the  uativrs.      I  ha\chad 


\]osiy  hiiK  l„.,.n    plcjised 


no 


Icr   with 


Ml 


op|ini-tuiiit\-  to  eon- 


t  hi'l'di/iT,    ii' 


ii;'itoi--(lriit'r;il    upun    tl 


wo  dilfor,  I   should  wish  ( 


'Vith  him 


I, 


lis    point  ;    and 


'  ii:i\t'  a  nieetiiiir 


'eniise  tois  is  a  (in 


piesi  ion  oi  iir(\'it 


•■'•nrenis  a  innHilu<le  of 
I II, /lis/  7    17.")'.). 


iieoph 


•  ■oiiMMpicnce 


r  V 


I!  ATT. 


(M.)  77, 


/// 


'     v.'/// 


f''<jll/  /'I/ 


"/'/// /-'/;  n/  thr  ^'■Jlrltnr-OcneraL  Yorh 


'<e,  on 


»/c.v. 


•""  "I"  "I'lninii,  lli.it    CiiiadalMiip,.  i-,  (,,  i 


«'   CDii-iiJorod 


•111'  I'li'ii    ni-  icniiorv    bcl 


I'liLiiii;;  to    I 


'iiipiesl  ,  am 


!'•  Kiiii;-    hv 


aiii   iilvu  t.l'  Dpiiiic 


111,  tiiiit. 


re(piisit(>s  of  ihr   .!.•(  ,.f  u 


iviualion,  ami  ll 


I^MVS     rr|,||i\-,.     I,,    ll 


W  ilM.    Ill 


hiti 


le  .same  suhjeot  matter  ai 


I'      I 'l'Olllll'(»     (1 


les 


as  if  impoilcd  tium  i 
82" 


n;sht  to  he  eliarK 


|iin\i,|rd   the 
ipient 
plied 


le  suh.-i 


(■    et.iii 


eU    Willi    till. 


aiiu! 


''■""■" Kiii-^  'iri-iiialU  Ihiiish. 


042 


OPINIONS    OF    EMTXEXT    LAWVERS. 


The  act  Of  navigation  U'fers  not  only  to  the  plantations 
and  tei-ntones  l.elonging  to,  or  in  the  possession  of,  the 
crown  at  that  time,  but  to  future  acquisitions;  and  the 
later  acts,  which  relax  or  vary  in  some  respects  the  pro- 
Visions  of  it,  are  equally  extensive.     The  instance  of  the 
rule  observed  at  the  custom-house  as  to  sugars  imported 
trom  St.  Christopher's  I.etween  1090  and  1712  (withou. 
distinguishing  ])etween  the  ancient  French  and  En-lish 
divisions  of  the  island)  is  in  point.     As    to  the  art'icles 
of  capitulation  with  the  inhabitants,  1  think  that  ques- 
tion is  ur.t  aifecte.l  by  them:   the  King  has  a  right  by 
eoncpicst,   (hough    it  is  accompanied  with  terms.     The 
seventh  arti.de  plainly  respects  .hitics  pavable  in  Gua- 
daloupe  its(df  either  as  a  beneficial  rovenue  to  be  trans- 
mitted to  Ivu-ope   on  the   King's  account,  or   to  be  ein- 
ph.yed    in   e.inyiug  on  the  expenses   of  govenmuMit  in 
the  pla.'e.      .Vn.l  the  sixteenth   and  twenty-lirst  articles 
(as   allowed    by    (."enerMl     n;nrin;:ton    cud    Commodore 
M(.ore)  only  slioulal.-  li.r  tl,e   i.d>  d.ifiMts  those   privile- 
ges in  trade,  aerording  to  the  law.  of  Kn-^land,  in  udiich 
his    .Majesty,    without    anv    su.d.   parti.'ular   .vtipulatiou 
might  lawtulK  indulge  them  iV..m  ti.e  moMM-nt  that  they 
owed  ail  allegiance  as  his   subjects,  roidents  in  a    plan- 
iiitioii  Iielonging  (o  his  crown. 

II'  .here  are  any  olyvti.,ns  agains,  putting  this  con- 
quest on  the  same  foot,  as  to  the  duties  ;„  ,,uestion,  with 
"tlier  plantati,.ns  belouoing  (o  the  Kin-,  or  in  bis  .Mai- 
e.sty'8  po.s.sessiou,  they  umst  ^nsv  IVom  m„. ther  arti- 
cles and  ••vpressi,,,,,  j„  ,| „,,i,„i,,tinu.  |..nding  to  qual- 
ity and  render  incomplete  the  right  or<'onques|. 

Un{,  lirst,  it  sei'ius  t(.  me  imiit.il.  rial,  that  no  actual 
oath  of  fealty  or  alhgiane.'  t..  the  Km-  i^  stij,„lated,  bo- 
causo    the   conquest  binds  the   inhabitant,  to  s„eh  nlle- 


OP    THE    LAW    OF    NATIONS. 


643 


giance  bv  the  law  of  nations.     Second,  Where  the  in- 
habitants stipulate  a  neutrality,  in  the  fourth  artic!<_',  it 
IS  merely  for  the  single  purpose  of  not  being  coii.pelled 
to  bear  arms.     Third,  Expressions  in  the  lifth,  se—nilh, 
and  eleventh  articles,  Avhere  both  the   English  officers' 
and   French  inhabitants,   seem   to  refer  to   some  act  of 
cc^-sion  {hy  way  of  perfecting  the  King's  right)  which 
may  possibly  be  made  by  France  to  his  Majesty  at  a  fu- 
ture treaty  .il'  peaco,  are  mere  inaccuracies,  and  import 
no  more  in  the  vieu-  of  the  paities  th.tn  saying,  in  ease 
the   island  shall  Ijc   retained  by  his  Britannic    Majesty, 
and  not  restored  to  the  French  King,  then.  Sec.  &c.    What 
puts  this  matter  out  of  all  doubt,  is,  that  article  twelve, 
as  periled  by  the  inhal)itaiits  themselvc-,  supposed  thr.t 
Guadaloui)e  mny  be  the  object  of  a-i  exchange  between 
(ireat    Britain   an<l    France,  which  it  could  not  be  if  it 
were  lu.t    an  ahsnlute   conquest  made  by   the   crown  of 
Creat  Britain,  capable  of  })eiiig  exchanged  for  .^oiiie  oth- 
er con(juest  made  by  the  cn.wn  of  France.     And  in  the 
sixth    article   of  the   capitulation  with    the  garrison,  a=i 
l)repMrcd  by  the  French  ollirors,  the  future  possible  ces- 
sion of  th.'  island,  referred  t,.  al  tlu   making  of  a  peace, 
i-   a  cessi.iu   t..    !„■    mad(>    by    (imit    Britain  to  F' r.m  e  ; 
Asiiicli.  in  the  \fr_\  teruis.  supposes  an  absolute  coiupu-st. 
I  poll  the  wl.ole,  1  am  of  opiuidn  that  the  island  of  Ciia- 
dalotipe  is  to  1h>  ronHdcred  as  a  plantation  belonging  to 
the    KiiiL',  aiwl  in  his  possession,  within    the  ineaiiing  of 
the  lawssialt'd;   and  that  the  (hities  ought  to  be  pai<l  in 
Fngland  as  on  e.  •nmodities  i.nported  from  I5iiti-li  ,ilaii- 
tatious. 

A,l,JNsf    ]:],    17:,;).  (•<     y^,,,^j, 

( lo.)  77f  opinion  nf  the  AHoiihij  and  S„nd(o,-f^  ncral, 


)s  s 


1  ^ '  «t 


i 


641 


OPIMONS    OF    EMINENT    LAWYERS. 

Tra-or  und  Hn,des,  Jn,r  far  ^cofr/nn.n  were,  all  n.,  cn.^ 
how  a  Lin,taaua-Guvo„,ram!dbetncd  lor  .nhdcmcan- 


or. 


To  (lie  Ki.^ht  HonoraMe  the  Lords  Conimi..ionc-r.s  for 
Irado  and  J'laiitp.tii)iis. 

InauMver  to  your  Lnrdship^' ^...,v..,  si^aifiod  to  „s 

by  Mr.  Popple,  the  30(1.  of  April  l.nst.  rdatino-  (o  olfc-n- 

c-^.  connnitted  U-  Captain  Norton,  and  against  the  act 

ior  rc-gnlating  ahuses  in  ttu-  plantation  trade  ; 

First,   ^Ve  are  of  opinion,  tliat  lor  ..uch  olfence  or  wil- 

^^'1  neglect,  the   Lieutenant-tJovernor,  Captain  Norton 

^nav  h.  ,„aiet-.l  and  tried  in  the  conrt  of  kino'.s  Vnch' 

by   v.rtne  of  Ihe  acMWr  pnnishin,  governor,  ^f  pl.n,J 

.o,.  lor  one.K.es  eonnnitted  I.y  them  in  the  plantations 
Bu     wo   doul.t    .helher    he    .iil    i,„.„,    ,.,   j,,,,,,   ,, 

^•K'ni.hyvl.e  act    made  *he  seventh   and  ei.hth    of  t|„. 

l^".g,  lor  regnlating  ahnses  in  th.   phn,..,ion  trad  .;  lor 

^-'■-i--ni.o  act  extend  .,nly(o,.,.vern,.,san.l  con. 
;'-'•''-  HMdnef  and  is  given  only  lor  Ihe  on;  „...,,•,,, 
^.k.n;.the..aths  or  putting  .iH.aWsi,,,,,.,,,,,,^^ 
^villbe   (n.ahleat     he  diserotion  of  the  eonrt  • 

^-ndkWe  think  a, or..,gne,...ndeni.ed  is, n.l„i...l 

;'^'-'—<"   a. h,ptrad,ng  to  the  plantations,  nnloss 
l-v,H.ap..,H,,..,.Mn.h.,,o,.pa,on.sofdeni.^ 
that  sn,h  denization  shall  not   ...aMo   hin,  to  i„.    ...ast., 

;;;;^    '•'■^^■''''•'''^  ''-''••---'-'  'or  that,. n, ..;,,„ 

'■'''   '""•';   "^""-ii'>    — eni.a.i„nsof   K,  ..„.  i.  p.-o- 
t-tanls  h,„v  tho  .-eign  of  l„s  p,,..,„,  Mai,..f^,!,v 


oi  rounci; 
1  ni 


order 


'";     ^^■••^"•'•"'•opini,,,:    (hataS.a.t.hn.ani.toho 
accounted  as  an  KnglMunan  u  nhnuhe  aot,everv  Seotch- 
Jttnr  1.  1701.  ■  r,, 

•lo    n  .1 1\  1 1 .. 


OF    Tf|E    LAW    OF    NATIONS. 


64.' 


flu 


(in.;  2he  opinion  of  the  Att 


01 


•nrij-General,  NorfJu-y,  on 


ipte^tioii  of  alienafjc,  ami  tra'/in,/  with  her  M<if.s-t;i 


cim/mes. 


To  tlio  Rii-ht  Ilo.,.  the  Lords  Conn 
and  Plantations. 


ni.ssioners  for  Trade 


May  it  idca.se  3-()iir  Lordslij] 


)s: 


On 


(' 


roiisi.k'ration  of  the  rase  ci"  M; 


anasse: 


Gill 


ni'diam. 


Who  (homo-  a  natural  horn  .snbjoct  of  her  Majesty,  out 
settled  inhabitant  in  tl 


10  isiaiul  ol'St.TI 


lonias  iK'lony-insr 


to  the  Kin-  „f  Denmark,  and  naturalized  there)  tn^ded 
Ironi  thence  to  and  with  the  Sj)aniard 
Majesty  ;  1  am  of  opinion,  his  be 


s,  in  war  with  her 


the  license  of  her  Majesty  wiu  not  di,M-l 


tl 


ic  natural  alleoi:ince  1 


ing  naturalized  without 
larj^e  him  from 


-r,  he   1 


>cin; 


T 


ln'iuas,    undvr  the  Kiu"-  of  K 


hO( 


■n  commanded  to  return  int< 


le  owes  to  her  Majesty  ;  howev- 

^ettled   inliabitant  in  the    island  of  St. 

sunaik,   and  not  liaviu"- 


<>  lier  Majestx  s  dominion- 


as   he  miyiit    have   been,   thouo-h  naturalized  tlxM-e,    1 
tradinj,r  with  tli.'  Spaniards  from  that  i.shmd 


•ith  the  Danes,  will  ii,,t  } 


in   amity 


aud  tlu'H'I'oro  I  cainiot  advi.xi-  tl 


'L>  a  capital,  if  anv  oHence  at 


iiiu  criuiinally  for  sucli  tr 
i;ippfiis   from  such  tradiu"- 


uMiu 


le  [jroccrdlng  against 
ll  any  inconvenience 


crnor  of  I{;;rba(h.cs'  Ktlci-,  thf  (,)u 
return  to  her  Majr>t\  s  d 


as  is  Slliiiri  strd    b\    tlu" 


iTOV- 


I'uccii  s  sub|fcts  ma\-  1 


)e 


iTcal  ('(t 


rcf  !-e,  and  after  trade  ai(h  h 


M 


may  be 


|>iiiini.iiis.  and  if  thev 
they 


iK'.-t  \  s  enem] 


l'i'"'ei'iicd   a;L;uin.sl   crimiiiali\   I 


or 


as  nn\  of 


lid 


.M 


-uch   li-adii 


IL'. 


tions  limy 

Majesty's  enemies,   that 

not  take  simple  tiad 


i.jesty's  subjeets  resid 


ii'.ii  in  her  ;)lanta- 


i"<'ceed..d   auaiust  foi-    tradiui;    with    1 


ler 


tor  a  lui-deni 


eai: 


for  I  (h 


pf'U,   nnlt'ss   ii 

N^  ith  stores  of  w.ir 


ill-  witii  an  cm  my  to  be  iii.r],  t 


in    such  trade  as  furni-lics  il 


IC     CMC 


rea- 
niy 


Manh  -i-i,  I7<t:;-i. 


.nw 


N 


oil  riiKV. 


.    i 


646 


OPIMOXS    OF    EMINENT    LAWyERS. 


(17.)    7;/r   o. 


irhetJier  tht  /' 


IHiii ni  of  the  Aft 


v'/jit:u.s-  ajtii'  t'lc  jWAice  of  17( 


To  Uie  Ilinhtn 


re)i<'i  aiu/  Sj>i(/,ian/.s'  w/i 


'rncij;GmcraJ,   Norton, 


h>  roH'ttned  ill  tlv 


'•>,  ■u'ere  aliens  ot 


onoral)Ie  the  Lords  (J 


Trade  aiu".  Plantations. 

May  it  pkaso  yonr  Lordships 


Dniniissioners  for 


Li  oliedicMK'i  t 


11  le  hv  Mr.  P 


o  your  Lordships'  comma 


11(1 


■() 


the  first  of  March  hist,  stat 


wualls  h'tter.s  of  the  2 1st  of  I) 


signified  to 
ocember.and 


ft 


ing  that  great  difllculties  had 


•efiuently  occurred  irom  the  question  whether  tl 


jects  of  tlie  crowns  c)f  F 


le  sub- 


th;)  ceded  couiitr 


ranee  and  Spain,  who  remai 


les  in  America,  are  to  be  considered 


n  m 


Ulcus  ;  and  •iitimating  more  particularly,  that  a  varict, 


as 


of  doubts  and  dilliculties  had 


ofal 


occurred  as  to  the  ability 


icns  to  acipiire  ])ropcrfy  in  America,  eitl 


n-aiit 


ler  by  piu-- 
'»•  ie^iM.  from  the  crown;  ami  also  as  to  the 
.situation  iu  respect  (o  the  laws  of  this  kinirdom,  of  aioh 
Mibj,.cts  of  the  crou-ns  (,f  France  and  Spain,  as  being  in- 
habitants o|-  ('iiiiiid.i,    Florida,  and  tl 


the  AVest  liid 
the    la^t   d 


le   ceded  island 


s  in 


le 


c  I  n  1 1 1  i  \  < 


'■*''"i;iiii  there  under  the  stipulations  of 


trcal\ 


and 


tl 


union,  ulictli 


itauts    of  ( 


lerelore  desirinir  m 


CI" 


-IK 


ly 


:lUil(l;l. 


1) 


oiiunu 


a.  S(,    \  ii 


iccut 


ic  alk'Liiaiic 


.ft! 


said    couiitrie 


Ii  <'i'  the  French  or  Spanish  inhab- 

\.\\v  islands  oj'  (Jrenada, 

V'JKigo,   iis  Itcinu'  born  out 


'lorid 


I,  imkI 


aii{ 


:l|es|\  ,    ;ll 


d  also  remain  ii;  tlu 


iiiiilcr 


'i|"il;iiions  dl'  tb,.    (IctinJ! 


Ireat^  , 
disabiliti 


\c 


are 


<ii'  lire  ii'it.   undci'    t 


!ie    1. 


-a  I 


es 


put    II 


in<ap,acities  and 


'"11  .iiicii^  and  -tiaugers  by  the  I 


t 


in  <  ol' 


IIS    kiiiLidoni  II 


I    U'CllCIMl 


navigation,  and 
plantation  fiadi 


III  IK'I' 


md   if  it  should   1 


id  jiaJiciil.irly  by  the  act  of 
iw-i  made   for  regulating  the 
'pinion  that 


le   Mi\    o 


OF    THE    LAW    OF    iVATIO\S, 


047 


they  are  unrler  siicli  disabilKios  and  incapacities,  your 
Lordships,   in  that  cn^^e,   dcsiro  my  sontiments   in  wliat 
manner  such  disabilit  cs  may  he  removed.     I  have  taken 
Mr.    Pownall's   letters  inco   my  consideration,   and   am 
hinnbly  of  opinion   that  those  snhjects  of  tlie  crowns  of 
France    and   Spain,    who   were    iidinhitaiits  of   Canada, 
Florida,  and  the  ceded  islnnds  in  the   West  Indies,   and 
continued  there  under  the  stipulations  of  the  definitive 
treaty,  having  entitled  themselves  to  the  honelits  there- 
of, by  taking  the  oaths  of  allegiance,  &c.  are  not    to   be 
considered  in  the   light  of  aliens,  as  incapable  of  enjoy- 
ing or  acquiring  real  i)roperty  there,  or  transniitting'it 
to  others  for  their  own  benefit:   for  1  conceive  that  Uie 
definitive   treaty,  which  has  had  the  saction,  and   been 
approved  and  confirmed  by  both   houses  of  ]ru-liament, 
meant  to  give,  and  that  it  has,  in  fact  and  in  law,  given 
to   the  then  inhabitants  of  those  ceded  countries,' T  per- 
manent  transmi.ssible  interest  in  tlieii'  land  there  ;  and 
tiiat  to  put  a  difVerent  eonstructi(,n  upon  the  treaty  would 
•  lishono.-   the  crown  and  the  national  faith,  as  it  would 
I'e   saying,  that,  by  the   treaty  they  were  pn.iuised  the 
.luiet  enjoyment  of  their  property,  but.  by  the  laws  were 
to  be  immediately  stripped  of  their  estates;  but  I  think 
thar  no  aliens,    except  such  as  .■an  .•laim  the  benefit   of 
the   definitive  treaty,  or   bring   tiuMnselves    within   the 
M'v.Mith  <.f    his  l.ate  Mr.jesty,  a-v  by  law  entitle.!  to  pur- 
cliase  lands  for  their  own  b.Miefit  and  transmit   them  to 
"thers,   either   from  the  crown  or  from   pri  vate  p.M's.ms, 
111   anv  of  his  Majesty's  d.miinious  in  North  America  or 
tlic  West  In.jies. 

Milt  I  submit  to  y.)in-  Lor.I>iii).s,  udictber  as  it  is  a 
nntterof  the  highest  importance  t!iat  those  .-ountrie.'j 
^hnuh]  be  sefle.l,   and  perhaps  not  less  s..  that  such  set- 


i  I 


■ 

■ 

. 

mz 

H 

iB!.£it 

^m 

n 

H 

H^K— -c- 

^ 

IP 

G48  oiTNfONs  or  eminent  lawvers. 

tlements  should  he  made  without  draininr?  this  country 
of  Its   inhabitants;  whether  it  would  not  be  proper   to 
apply  to  parliament  for  a  naturalization  ))ill  for   those 
.      places,  undor  proper  regulations,  as  well  to  eneouracre 
foreigners  to  go  tiiither,  as  to  quiet  such  aliens  as  mry 
have  already  settled  there  under  the  common  received 
opinion  that  they  were  capable  of  hohling  land.,  there 
for  their  own  benefit,  and  disposing  of  them  in  anv  man- 
ner they  might  think  proper,  in  common  with  tL  rest 
of  his  Majesty's  liege  subjects. 

-. .  Fletch.  Norton. 

Lmcoln's  Inn,  July  27,  1704. 

H.-nf  the  legal  effects,  resulting  from  the  acknowl- 
edged independence  of  the  United  States. 

^1  re-^fatnnoa  of  J/r.  Chnhner^,  njnnh,i  on  that  hn- 
jyorfant  sxhjcrt. 

The  .p.estion  is,  whether  the  inhabitants  of  the  United 
Ntates,  who  had  been  born  within  the  King's  alle-iame 
and  remained  within  the  United  States  aft-M-  the^-  were' 
aekuowle,lg,.d  by  the  King  to  be  independent  and  sov- 
ereign, continued  subjects,  having  th.  rights  of  sul^ject.- 
-■  '-an.e  aHcis,  having  the  rights  of  aiiens,  iVoin  thai 
acknowledgment. 

Hnnng  the  year  1783,  which  forms  the  epoch  of  that 
-out,  took  the  liberty  of  publishing  ...v  opn.iou  of 
tl.o<e  cOec.s.  Whatsoever  1  may  have  seci  or  h^ard 
.^.Hcelhat  epu,.],.  I  hav.-  not  in  the  Last  chau.vd  mv 
•>1-"'"'.  And  as  abler  nu..  than  I  preteud  to  be  have 
avowed  and  publishcl  very  different  sentiments  from 
mine,  it  may,  perhaps,  be  in.n.-.itte.l  n.e  to  restate  and 
'•euuon.e  my  original  ..pinion,  which  lirst  broke  th  •  ice 


h.l 


t;  il 


OK   THE    LAW    OK    NATIONS. 


649 


that  had  been  collecting  and  consolidathig  for  so  many 
years. 

The  act*  which  enabled  hi3  Majesty  to  conclude  a 
peace  or  truce  with  certain  colonies  in  North  America, 
declared  it  "to  be  essential  to  the  interests  and  the  wel- 
fare and  prosperity  of  Great  Britain  and  the  thirteen 
specified  colonies,  that  peace,  intercourse,  and  commerce, 
should  be  restored  between  them. 

The  treaty,  it  must  be  allowed,  is  explicit  enough  as 
to  the  political  associations  that  formed  the  states,  which 
are  expressly  acknowledged  -to  be  free,  .sovereign,  and 
independent  states;  and  the  King,  for  himself  and  his 
heirs  and  successors,  relinquished  all  claims  to  the  gov- 
ernment, propriety,  and   territorial  rights  of  the  s^me, 
and  every  part  thereof"     The  statute  of  the  22d  of  the' 
King  does  not  take  notice  of  what  the  world  knew  sutfi- 
ciently,  that  thirteen  of  the  British  colonies  had  revolt- 
ed ;  neither  does    it   notice,  that  the   persons   forming 
liiosc  colonies   which  iia.l  declared  themselves  in    ]V7(i 
to  be  independent,  were,  and  had  always  been  the  King's 
subjects;  but  it  merely  enaides  the   King   to  makc^'a 
I)ea(!e  or  truce  with  any  connnissioners  who  nn'ght  be 
sent  by  the  said  colonies,  or  any  of  them,  or  any  bodies 
politic,  or  descriptions  of  men  within  those  colonies  : 
and  the  treaty  is  altogether  silent  as  to  the  individiials 
who  formed  those  well  known  confederations  :   it  admits 
the  thirteei.    ocietics,  in  their  as.sociated  capacity,  to  be 
free,   .sovereign,   and   independent,   by  relin(|ui.shing  all 
claim  of  government  over  them  :  yet  it  does  not  ex^ilic- 
itly  renounce  the  allegiance  of  those  colonists,  who,  at 
tlie  epoch  of  the  war,  wore  still  British  subjects,  in  con- 


83 


•22<iw.  III.  cLup.  .10. 


•l^ 


.1 


.1 


k 


650 


OPINIONS    OF    EMINENT    LAWYERS. 


templation  of  British  law :  for  it  does  not  declare  that 
the  citizens  of  the  United  States  .shall  be  deemed  aliens 
in  future;  and  it  neither  excepts  nor  disowns  those  faith- 
ful subjects  who  had  retained  their  allegin-  .e  and  ad- 
hered to  their  Kino;  and  country. 

The  faithful  colonists  of  Great  Britain,  as  they  had 
been  l)orn  within  the  King's  dominions,  wore,  owing  to 
this  circumstance  alone,  constituted  subjects  of  the  King 
and  freemen  of  the  realm.  By  their  birtli  within  the 
allegiance  of  the  crown  they  aniuired  a  variety  of  rights 
which  arc  called  emphatically  b\-  lawyers  their  birth- 
rights, and  which  can  never  be  forfeited  except  by  their 
own  misconduct,  and  can  never  be  taken  away  but  ijy 
the  law  of  the  land.  "  No  freeman,"  .says  the  gix^t  char- 
ter, 'siiall  be  seized  or  imprisoned  or  outlawed  or  any 
way  destroyed,  except  by  the  legal  judgment  of  his 
peers,  or  by  the  law  of  the  land." 

It  is,  nevertheless,  a  very  different  considei-ation  with 
respect  to  those  colonists  who,  liavi-g  achieved  the  late 
American  revolution  by  their  efV  .rt.-^  nnw  fcrm  by  tlieir 
residence  the  United  States.    Ilight.^  iway  be  undoubted- 
ly fn-feited.  though  privileges  cannot  be  arbitrarily  tak- 
en away;  a  man's  crimes,  or  even  misconduct,  may  de- 
prive him  of  (hose   immunities  which   he  nn'ght  have 
claimed  from  birth  or  derived  from  ,«ome  act  of  the  leg- 
islature :  he  may  be  outlawed  by  the  sentence  of  a  court 
of  justice,  or  he  may  be  banished  by  the  united  .^utTiages 
of  his  countrymen  in  parliament;    the   American  citi- 
zens, who  voluntarily  abjured  their  sovereign,  avowed 
their  desigi'.  to   relinquish   their  character  of  subjects, 
h!;wever  contrary  to  law  their  relinquishment  undoubt- 
edly was.     The  American  subjects  wh.j  .swore  fidelity  to 
tlK.  government  of  their  own  <>hoice,  thereby  declared 


OF    THE    LAW    OF    NATIONS. 


651 


tlieir  election  to  be  no  longer  connected  with  a  state 
which  had  mortified  their  prejudices  nUiier  than  be- 
reaved them  of  rights:  and  by  that  conduct,  and  by 
tliose  oflences,  the  devoted  colonists  forfeited  to  the  law 
all  which  the  law  had  conlerred  on  them.  The  Ameri- 
can treaty  virtually  pardoned  their  misconduct  in  form- 
ing those  associations  which  were  admitted  to  be  free  : 
the  parliament,  by  its  recognition,  virtually  legalized  the 
election  which  the  revolted  citizens  of  those  .states  had 
made. 

But  whether  that  treaty,  or  that  act  of  the  British 
legislature,  ought  to  be  construed  a  relinquishment  of 
their  allegiance,  with  the  obedienc?  that  is  inherent  lu 
li,  or  as  a  pardon  of  their  laults,  whatever  were  commit- 
ted^ by  forming  those  associations  and  taking  oaths 
which  we-e  inconsistent  with  their  allegiance,  is  a 
ponit  which  needs  not  be  now  very  pertinaciously 
argued. 

The  term  natitni  always  supposes  something  collect- 
ive, or  a  body  politic.  A  colony  is  also  a  body  politic, 
though  inferior  to  a  nation.  Each  ol"  the  revolted  colo- 
nies, Avhen  it  departed  from  its  former  character  of  a 
3olony,  l)ecame  a  state,  or  body  politic,  and  the  associa- 
tion of  tlio,.e  thirteen  states  which  had  departed  thus 
from  their  charaete-  of  colonies,  formed  a  nat;,)n,  or  body 
politic,  under  the  name  of  the  riiited  States.  The  Kin<r 
by  the  defniitive  treaty,  acknowledged  th(.se  states  to  be 
free,  sovereign,  and  independent;  he  treated  with  them 
as  such,  and  he  relinquished  for  ever  all  claims  to  the 
governun  iit,  propriety,  and  territorial  right  of  the  same 
couiitvies:  the  extent  of  tho<e  territorial  rights  or  bound- 
aries of  the  Tnitcd  States  were  distinctly  iiscei  tained  and 
avowedly  declared  by  a  particular  clause  of  the  defiui- 


m 

i 


*  i 


H 


662 


OPIXIONS    OF    EMINENT    LAWVERS. 


tive  treaty.  On  the  same  day  that  the  Kmrr  ratified  by 
a  formal  act  that  definitive  treaty,  the  whole  acts  of 
trade,  navigation,  and  revenue,  attached  upon  those  Uni- 
ted States,  as  a  nation  free,  independent,  and  sovereiirn. 
It  did  not  now  re((iiire  to  be  a  great  lawyer,  to  tell  that 
the  soil  of  such  a  nation  was  alien  ;  that  the  products 
of  such  a  soil  were  alien  ;  that  the  ships  of  such  a  na- 
tion were  alien  ;  and  that  the  navigators  of  ^'uch  ships 
were,  ex prhna  facie,  aliens. 

As  the  king-  had  now,  by  the  treaty,  relinquished  for 
ever  all  claims  to  the  government  of  the  United  States, 
so  did  he,   incidentally,  reli>Hpiish  the  obedience  of  the 
various  people  forming  those   United    States:     as  the 
American  citizens,  \w\\o  formed  those  bodies  politic,  now 
owed  no  subjection  to  the  crown  of  Great  Britain,  they 
were   no  longer  British  subjects,  the   terms  subjection 
and  subjects   being  correlatives,  such  as   husimnd  and 
wd'e,  father  am]  son,  sovereign  and  subject,  which  must 
alwavs   have  a  reciprocal  relation  to  each  other  :    it  is 
one  thing,  says  South,  for  a  father  to  cease  to  be  a  lath- 
er, by  casting  offhis  son;  and  another,  for  him  to  cease 
to  Ije  so,  by  the  death  of  his  scm  :  in  this,  the  relation  is 
at  an  end  for  the  want  of  a  corrcInti\e;  and  in  the  same 
manner,  wb  n  the  sovereign  relimpiished,  by  the  treaty, 
in  the  due  pertormance  of  a  legal  trust,  all  claim  to  the 
govei-ir.ncwt  of  the  United  States,   the   relation  of  the 
AmiM-ican  citizens  ceased  for  tb-  wa-t  of  a  correlative. 
The  first  law  oi)ini()u  which  iiu     ,  11,  \  into  np-  jiand. 
on  those  topics  was  that  of  M     .i^^-nyo. ,  elated  at  Ches- 
ter, on    llie   11th  of  October,   1783*.  and  without  any 

•  Tlic  dufiiiitivc  trcruy  wa.s  signed  on  the  3d  of  Soptciuber,  178^.  TIio 
case  ciiiy  t-t.jod  lo  Mr,  Konyoii  the  statute  12  Charles  II.  chap.  18.  .sec. 
3.  8.  o.  with  this  N.  IJ.     •'  Tiiese  questionKare  put  merely  to  know  huw 


iili 


OF    THE    LAW    OF    NATIONS. 


653 


hositation  lio  crnve  it 


ns   111,. 


■truotioii  (if  t]. 


opinion,  tliat  "  the  fair  con- 


«'  ;iii.  as  oircnnista 


A'oods,  the  iii  <1 


ed  into  th 


uco  of  the  rniled  Staies,  may  ) 


comitrv  iVoiii  tlio  ])laco  ol"  tl 


noes  now  stand,  is,  that 
niport- 


)e  I 


11' ir  srrowtli,  no- 


on payment  of  the  duties  pavat)le 


.in  no  other  tcrm^ 


ly  loreifrnors,  and 


Tl 


up- 


le  next  opinion  whieh  has  lai- 


■  en    111  my   way  is  (liat  of  Sir  William    W 


vnne. 


was  asHced  hv  the  hoard  (/fcnsti 


which 


Tnited  Slat 


es  were  entitled  to  re< 


uns,  whether  sliips  of  the 


:isie 


British  eoloni< 


oxpocled   from  sneh  a  jurist, 
ships  as  British,  hut  a.- 


as  s 


wliich  is  such  an  opinion 


lips  of  the 
as  was  to  be 


against  considering  such 
next  opinion  which 


The 


irnev-general,  Ar- 


lias  occurred  to  mo  is  that  of  the  attt 

den,  m  Oct.  178S,  wherein  he  gives  it  as  his  judgment, 

that  there  can  he  no  trade  ])etween  the  United   States 


and  the  Briti.-h  West  Ind 


liy  the  King's  proclaniat 

prove,  what  is  sunicientlv  ohviou 


ics,  except  such  ;  s  was  allowed 
ionjj.     All  those  opinions  go  to 


ted  States  became  IVee,  sov« 


in  itself,  that  the  U 


ni- 


leign,  and  independent,  un- 


der the  deljnltive  treaty;  and  so,  mu^t  he  deemed  forei 
and  alien  to  tlie  Jjritish  nation  ;  taking  it  for  granted, 
that  the  peoj)le  forming  those  United  States  must  be 
recessarily  aliens. 

Yet  are   there  books  which  propagate   different  doc- 

♦bc  In-.v  staiius  iijior,  tliof^o  efii.ics,  without  any  regard  to  any  orders  of 
eoiiu,  il  that,  m;iy  he  iwnlc  rchaivo  to  the  trado"o:  America,  midor  the  act 
of  last  .session  of  i^arliaiueiit." 

tSee  ihi.s  i.;.iiiioii,  uuiier  tliis  liead,  No.  2. 

^  i  It  wa>  dated  on  the  liuh  of  October.  178:..  The  late  Mr.  Thomas 
l^ouiie,  the  ohairnian  of  the  hoard  of  eustoins,  a.'fured  nie  that  the  attor- 
ney ,iiid  solicitor -goiicral  concurred  iu  Sir  T.\iUium  Wyiine'H  -opiuion. 
See  it  under  thi.s  head,  No.  3. 

U  Sec  this  opiiiiou,  under  this  lio.id,  No.  1. 


m 


1-, 


654 


OPINIOXS    OF    F.MIXEM'    I.AWVKRS. 


U  i 


trines,  aiul  jiersoiis  of  ina-eiiuity  wlic  avow  notions  that 
load  them  \t,  consi-lri-  tlio.-c  ritizeiis.  ^\  ho  Avero  horn  un- 
der the  alioaiaiK  .  of  ;ne  Kinir,  to  )>o  still  entithnl  to 
their  Iiirtl^rights.  as  snhjects,  under  the  well  known  d,- 
claration  of  the  ireat  charter,  (hat  has  l;een  alieadv 
quoted. 

But  every  nation  and  ever',  state,  under  whatever 
name,  inu'-t  eou-^;..f  oi'  individual^,  men.  women,  and  ehiU 
dreii.  of  wh\!ever  nuiuher,  audit  is  those  individuals 
wl'oloiiulhe  body  politic  ol' eveiy  such  nation  and  , state. 
By  the  defniilive  treat  w  the  KiuL'',  lirst,  acknowledged 
the  a.ssociations  ofiuilividuals,  foruniiii:  the  United  State,* 
to  he  free,  sovereiiiu.  ai.d  indeiiendent  ;  and,  secondlv, 
reliuqui^lied  all  elaiius  to  tlie  -oveiaiment  and  territori- 
al I'iuhts  of  the -anie.  Aceordiu;:;  to  (ho<e  notions,  then, 
the  country  ol"  tin-  CnitiMl  ,<tate<  is  reliu(|uished.  as  sov^ 
eroign.  nud  llie  i'dia!)ilanl<  thi'i'eol'  are  aduntt(>d  tube 
fret'  anil  iiiiie[>ondeiit ;  yet  iU'i-  they  said  to  iie  suhiects, 
elaiuii::u;  irom  the  laws  of  Kntilanil  thcii-  hirtli-ritihts  as 
Brifi»:h  Md)je(ds,  notwith.standing  tluii'  owii^election  to 
l)e  I'reo  and  indep'-ndeut,  and  the  reco-uition  of  their 
(dection  hy  their  former  .sovereign.  Sn<di  aconlradic- 
tion  of  character  never  existed  in  auy  cutli-  -.f  hiw  in 
any  country;  on  the  conii.ii-y.  the  i/ird  eii;ni.>rlliii'  j-ii^cr- 
ton  laid  it  dtnvn  as  a  principle,  in  tlelivering  his  judi;- 
ment  in  tlie  ea,so  of  the  post-n.\ti,  "in  n  Iruo  ,u  d  law- 
ful .suhjeet,  Wwrc  mixA  ]w  Mi/f J, rfio,  fi(/(.>^.  (t  nl.nl'u  ntia, 
and  tlio.sc  cannot  bo  .severed,  no  more  thaji  true  faith 
and  tdiarity  In  a  true  chribtinn*."     Now,  the  notion^  bo- 


■'■^ 


•  Sec  L>)iil  K^rortouB  8[icooii,  wlik-h  he  pullislict;  in  ICOD,  p  CI.  I 
preauiiio  it  in  nut  nccc^.iury  to  .•<«y,  tliiit  wliou  the  lord  cfanDcellor  pivcs 
Lig  judgment  on  dio  ttisc  bofuro  Lim,  for  hi.s  decision,  tiiut  it  becomei 
a  paf*  "f  die  luw  of  the  land,  if  it  bo  not  nppcalod  from,  and  reverBed. 


OF    THE    LAW    OF    .\ATIO\S. 


6')0 


fore  mentioned  would  scparnto  from  (he  character  of 
true  st.l)ieet,  the  subjeclion,    tlie   Ibal 


fv,   and  the   ohedi- 


le  ,irenume  character;  and 


ence,  which  is  so  essential  to  tl 

after  those  very  citizens  of  the  Tnited  States  had  r-di 

quished  their  fuitli,  alle-dance,  and 


()i)e( 


a( 


knowledged  hv  the  Kini!;  to  he  1 


lienc- 


what   suhjection,  what  faith,  wliat  .bedi 


and  were 
Vee  and   iniicpcndent. 


main  in  sucli   citizen-?     \\ 


[oi'Crr 


encc   could  re- 
may  now   infer  from  the 


:oing-  premises,    tliat  i(    is  a' 


un  found 


'>unl  in  argument,  and 


eil    HI 


an( 


privil 


i\v,  for  any  person  lo  claim    the   rights 


leges  of  a  Milijc^ct,  Avitl 


lOU 


tion,  prof 


I  slioNsing  his  suliiec- 


the  American 


essuig  .lis  Ihiili. and  owning  his  ohcdiciicc    Y 


citizens  arc  fi'cc,   an 


\c 


t  1 


low 


Not  to  do  as  (he\-  list  •   fn-  tl 


d  wilJK  lit  siiltji'ction 


their   freedom   and     iinlcpend 


tin   pnhlie  "^  :   so  sa\  s  the  la 


icy  must  so  use 
cnce   as   not    to   prejudice 


w    of   1 


P 


ihj;, 


ii  pi-(i\ ixtula  t-^t  j 


ca-on  and  polic\-,   r. 


I'liuHt.s 


:nd 


statutes t. 

The   learned  and    elei^aiit    Ciaii:-    Ir; 
trine   of  forei<n 


so   allirm   many 


Avhicii  tiiis   i-<    th 


iriii. 


e  chicles 


•na''-e 


Hack 


leuiial 


th 


e  (loc- 
aw,    of 


(li'in'niont 


III  /, 


nil')  I 


t  rule:    nuns  et  i./iiu  ./noniin 
/y/'.v  ^.v.v,   /rill  pf)frsf.   that  is,  oi 


th.' 


ame 


jiersoii   caiuii. 


he    1 


leueman,  ( 


u'  \.i<<al 


Miperior  lord-;.      H,.   xvl,,,  ,, 
whose   licg,.   snhjcct  h«>    is,    I 
wiiat  he  owes  to  his  (nic  lor 


Imni  iiniier  aiiollicr 


le  and 
of  two 
prince, 


ill    another  eminti  \  ;   for   he  e.uiiiot    kee 


leeaii-e    lie    cjiniiot  pei-form 
i-  pH!  a\\a\    from  the  (ief 


I  lih 


fcaltv 


un- 


•  Cou)!ium!;iiv  upon  Fortcsoue,  'iOI. 

t27  E.Uar.i  III  1  .'  Hi;  28.  Edw.  III.  ch.  5;  23  Huiry  VIII  ,1, 
IG;  25  Ilcn.  VIII  ,1,.  I3;  32  Ihn  Vill.,|,.  18,  19;  J3  iJen.  VIII 
cb.  7;  35  Hen.  Viil  rh.  1;  1  K.hv  VI.  ch.  3.  5;  2  and  3  Kdw  VI. 
vh.  37;  1  and  2  P.  m.d  M.pli.f);  18  Elix.  ch.  •>.  l.*)  17  ;  .c  Kijj,  ^h  ^j 
•i'i  Klii.  ch.  o  ;  27  Kii«.  oh.  I'.),  Sec. 


■'1 

■    f 

fl 

1 
i 

f 

tif 


656 


OPINIONS    OF    EMINKNT    I.  \WVER?. 


tainted  und  iiiviohito  to  two  lords,  to  him  under  whom 
he  i.s  horn,  and   lo  his  new  sovereiun  ;  iicithe-  is  it  pos- 
sible tor  liini.  in  case  of  war   between  them,  to  suceor 
them  both,  to  assist  botli  as  a  soldier,  to  cDnceal  the  se- 
crets of  both  princes,  which  is  chietly   ie.|wirrd  bv  tlie 
iend.d  law.      Tiiis   able  writer  enusideis  tliis  dnclrim.  a.- 
universal  in  the  several  codes  of  tlie  Kuropean  nations- 
it   is  even  so  b\-  the    law  of  nature:   no    Man,   said    our 
Ravioi     ''an  .serve  two  masters,  for  ho  will   iiale  tiie  one 
and  love  the  othei' "       If  (he  feu.l'd    law  were  a  braii-h 
of  the  eonnnoii   hnv,  tiien  must   the  notion  wliich  attri- 
butes riirht^  to  the  former  ..ibjeets,  alter  their  subjection 
was  relin.piished  by  their  .sovereign,  l)e  abhuirent  to  the 
common  law. 

Tin'  Amci-ican  citize.is  can,  tiiereloiv,  by  no  mode  of 
speeidi.  nor  by  -jwy  juincipal  of  law,  ol'  the  law  o|'  na- 
tin-e,  o!  the  hiw  of  nation,  of  the  feudal  law.nf  tlu'  ■•,  u- 
moii  law.  bo  d,'omo<|  ibilivh  sulijccl-^,  mile-s  those  a-so- 
eiations  of  mankind  aic  ,Mibjrct<.  v,  ho  o\\  -  no  alloL'-'ance 
to    tlio  l>riti-h  crown    or  any  obedirnc'    (o    tKf    Ihili^h 

.-"^■'■'' I":    <!!:it    alh-ianco.    which    is  said   f    include 

all  the  "n-aucments  owin--  Irom  subject  to  sovoreisjn ; 
that  obedience,  uhh  li  is  .viylod,  emphalicallx.  toe  verv 
csseni"  ofl.iw.  in  th-  rep.>rt  of  Calviu'.s  ca.se,  it  is  said 
to  be  a  maxim  lb, it  ii,L;eance  is  a  reciprocal  t\c,qi,iasicvt 
siihdifii.s  I,  II,  fur  ,fl  'J..,i;.nti<im,  ifa  n.r  fmcttii'  ad  pr^tec- 
thium-^.  i?ul  wh.il  !(•(  iprocity  can  there  bi>,  or  what 
protection  .daii.ued,  wln-n  subjects  have  reiiomic.d  their 
allegiance.  reru.s,.d  their  obedien.  e,  and  the  Kiiej- there- 
upon renuunce    tinlr  ,ille-rianee,  and  release.s  their  sub- 


•  Craig  ou  tlio  sucuessiou  of  King  .lum.-,  :^s. 
t  7  Co.  :,. 


OF    THE    LAW    CF    NATIONS. 

jection,  by  acknowled-in-  tl.eir  freedom  and  indt 
eiice  ?     The  Kin,^ 
liiH's.     All  A:-:iori( 


657 
pend- 


must  apply  to   the  King's  '-nv 
to   legal  protection,   ho  j  i; 


irive.s  protection  to  his  subjeels  by  his 
an  citizen,   claiming  his  birth-ri'dits 


owning,  and  \icldino-  ,,}x.( 


s;  and   to  entitle  himself 
■how  that  he  is  a  subiect 


If  1 


he  must  fail  va  his  oh 


le  cannot  do  that. 


iuan  m  the  time  of  Eiiward  1.  who- 
Hengham:  she    broiiulit  a  writ  of 


ims  of  rights,  like  the  Froncl 


iwc- 


dicke,   and  declared  ( C  tl 


!e  case  is  repoited  in 
Cf/r//  against  Coble- 


n.ti 


le  seisin  of  r?oger,  her  grand- 


and  th 


<er,  an<l  corveyed  the  descent  to  Gill)ei't    her  fatl 


ler. 


e  same  descent  from   her  father   to  hersell'-  and 


the   tenant  ])leaded,  that  (he  demandant 


legiancc  of  En-dand, 


was  not  of  the 


or  of  the  fidelity  of  the  K 


demanded  judwment.     This  was  held  to  be 
ficient,   for  to  the   King   (i.k-litv  nn.l  allei; 


no; ;  and 


'S    ! 


.'Mid 


th 


;ood  and  suf- 


,nance  are  due 


erefore  since  she  failed  in  thiil,  she  was  not  to  1 


)e 


answered,   and   thereupon  she   ])r;.yed  license  in  d 
from  her  writ,  and  so  she  left  her  suit 

It  may  be  here  worth   inquiry  if  something  to  this 
useful    purpose  may  not  ajipear  on  (he  face  of  ihe  t 
ties  nith  the  TuKed  States?      }]y  ar(irle    1  „f  (he  .lef 
itive    (reaty,    it    w:i.  stipulated  tl;;it    cn'd 
side  should   mee(  with  no  lawl'id 


ejtart 


I'ea- 


m- 


ilors  on  either 


iP'Medinient  I  > 


r<>- 


<iti/.(Mis   (if   the 


covery   of  their   debts.      Aft.^r   the    re-e>tabli-l.nien(  of 

pence   by  that    treaty,   (he  subjects  and 

(ontracting  jiart'es  were  not 

there  coidd  not 

d 


ill  wjir 


an( 


I  1 


Kin: 


it 


iieace 


lie  am 


le-d 


impediment  to  h-gal  reme- 


thv 


les  for  jest  del.l-;  h;,t  i„  contempl.idun  of  the  treaty, 

power   ,iud    (he  citizens  of  the 


0  sulijeci^  of 


tl 


le  ii:ie 


other    had    b 


lue  thereby  aliens  to  each  other.     Tho 


•  The  lord  rhmecUor  Kgertnn's  5prceb   91-3 

81 


G58 


OPINIONS    OF    EMINENT    LAWYERS. 


same  observations  may  be  made   npou   the  uth  article, 
whieh  provides  lluit  persons  having  an_v  interest  in  con- 
fiscated lands,  either  bv  debts,  marriage  settlements,  or 
otherwise,   should  meet    with  no  hwful  impediment  in 
the  prosecution  of  their  jnst  rights.     It  ma>-    bo  more- 
over rejuarked  that  Adams  and  Jav,  two  ol"  the  Ameil- 
lean  iiegociatojs,  were  lawyers,  tliL  ucst  being  ohiei' jus- 
tice of   Massarh;;-^ctts,  and  the  last  chief  justice  of   the 
United  States,  and  both  Adams  and  .lay  knew  the  mean- 
ing of  their  own  terms,  whatever  the  Hritish  iiegociator 
may  have  done.     This  reasoning  is  contini  xl  by  an  ar- 
ticle in  the  couiuiercial  *-eaty   between  Great  Britain 
and  the  Uidted  States,  which  was  neg>jciated  in  Novem- 
ber, 1791,  l)y  Lord  fh-enville     :-.d  the  same  John  Jay: 
it  was  agrci'd  by  artich-  11,    -that  Britisl;    .subjects  mLo 
now  hold  louls  in  the  Tnited  Slates,  and  the  American 
citizens  wli)  now  hoM  lands  in  his  .Alajesty's  dominions, 
shall  cnntimie  to  |),,Id  them   accordii-g  to  the  nature  and 
teuMre  nl'  their  respective  states   and  title.-  the    -]n,  and 
may  grant,  .-.ell,   or  devise  the  same,  a.s  if  .'ay   were  na- 
tive.^  and  that  neither  tliey.   um  tlieir  heirs,  or  as>ign.s, 
sliaU,  >o  i;,r  as  may  respect  the  .said  lands,  and  the  legal 
remcili.'s  iueiden*  tlieieto,  be  regarded  as  amens*."'     Is 

•  Tlio  ?>:  (.00.  Iir.  ell,  '.);.  w.is  iii:i,l,.  Cur  .-.orrviiig  into  rxooii'ion  that 
t.v;it\-  nf  cniHii,  rr...  liy  scrtioii  -  1.  ilu'  ',t||,  „rticlo  .'ilmvo  Stat,,!  wa.s  r.-it- 
ilifd,  any  law,  iii>i(.iii,  or  ii>.:if.,.,  to  ilio  contrary  iiut«  lll.^t:u.dinf.^  Tlio 
artitl,.  iM'turc  niri,ti.,ia.d  wa.s  n.lui.l.d  by  tho  ncgucialnr-.  „r  ,i,  as  tluy 
consi,!,  r.Ml  the  |„...|,1,.  ,,f  Great  Britain,  and  Cdtcd  State.-,  to  l'„'  aliiii.s 
to  cachollur;  and  tlu- j.ailiai„.-nt  .Mnfirnu.d  t\n^ -.hUvU;  ,-,  „/w,i,/„„fe 
cauulu,  i.otwitl.Mandiug  tlju  wdl  known  law,  -ust-.m,  and  u^^ago,  to  the 
contrary;  yet  aro  thero  some,  who  consider  this  ,-tatuto  as  a  proof,  that 
the  citizens  of  the  U  nind  Slates  aro  >,nt  aliens.  There  is  another  stat- 
ute,  whiih  also  ^bcws  the  bcn.se  of  parliament  on  this  t,.pic :  the  30th 
!.e"  111.  eh.  2r.  for  CDcouroying  the  scttliti^  of  tlic  Hritish  colonies,  hy 
itihalutants   from  the  United  Slates,  re.(uiivd  ,s,„i,  cnignmls  i.,  the  lint 


OF    THE    LAW    OF    NATIONS. 


659 


it  not  apparent  then  from  the  foregoing  intimations,  that 
ill  the  jiidomeiit  of  the  negociators  of  the  .several  trea- 
ties hetween  Great  Britain  and  tlie  United  States,  and 
in  contemplation  of  parliament,  the  suhjects  of  the  first 
country  and  t'-  ■Wizens  of  the  last  were  considered  a-j 
foreigners  to  c  Hicr? 

Yet  !>.re  we  still  told  that  those  people  of  tlio  United 
States,  who  were  born  liritisb.  subjects,  even  now  con- 
tinue to  be  entitled  to  their  original  birth-rights  ;  and 
for  this  singular  notion  the  great  charter  of  English  lib- 
erties is  (luoted,  that  iio  freeman  shall  be  outlawed,  or 
any  way  destroyed,  except  by  the  judgment  of  his  peers, 
or  by  the  law  of  the  land.  But  is  not  this  argument 
cons'eived  upon  too  narrow  principles  to  appiv  apposite- 
ly to  the  present  cpiestion,  relative  to  thousands  of  num, 
rather  than  to  (me  man  >.  The  fundamental  piinciple  ih 
.sound  law  ))ut  it  does  not  reach  the  ease  ol'tlie  irdiabit- 
auts  of  thirteen  colonies,  who  revolted  from  iho  British 
empire,  who  rose  iu  arms  agaiu>t  tlie  iving's  govern- 
ment, rcPoiiiirMm-  tbrir  aHegiance,  and  claiming  their 
freedom  from  any  furtbcr  obcdicn.'e  to  i>riti>ii  laws,  an^l 
acting  tluis  again-t  all  law  dniiiii:-  <c\-cii  \c;irs,  were  re- 
cognized by  tile  King,  in  pursuance  of  the  lii-h  trust  in- 
vested in  him  by  tlm,,.  law-  t(,  be  independent  and  sov- 
ereign, witbout  subj(  clion  or  obedience.  \-  it  not  a  suf- 
ficient ajiswer  to  such  preteu>ions,  as  u  claim  of  n-bts 
without  subnilssinii,  ro/,i)fi  nan-  ^tit  injuria  ;  _)ouhave 
''''■''''•''  •"  be  aliens,  and  von  have  been  recognized  by 
the  Kuii:-.  the  I'onntain  of  all  jiu-hsdiction,  to  b,'  what  \  ou 
have  cho-en  for   yourselves;  and  the   laws,  from   which 

i;h  coloiiifg,  to  ti.ki>  tli,'  oafh  of  allegiance,  upon  tlirir  :irriv.u  arnl  settle- 
incMt;  l,ut,  in  this  caMo,  none  but  alioiis  wuulu  Ik.v.I.iou  re4uircd  to 
take  tin-  oiith  of  nlli  gi-jice  to  fLe  king. 


660 


OPINIONS    OF    EMINENT    LAWYERS. 


jou  claim  y-u-  rights,  cannot  acknowledge  you  in  any 
other  character  than  you  have  chosen  for  yourselves, 
and  have  been  recognized  to  belong  to  you:  you  profess 
not  to  owe  any  allegiance  to  the  King,  or  obedience  to 
hi.s  laws  n,[  under  such  cireunistauees,  you  cannot  ro- 
cei\e  protection  from  either,  whatever  rights  you  may 
have  once  possessed,  quod  o^t  inronvcnUn^;  cuit  contra 
rationoii,  noit  [>•  nni^ssiim  est  in  fa/e  ". 

In  (he  argument  of  the  instructive  case  of  Campbell 
and  Kali,  in  Hilary  Term,  1771,  it  was  said  :>y  Mr.  Al- 
LEV.\,  the  learned  counsel  for  the  plaintiff,  '^the  techni- 
cal learning  of  Westminster-hall  can  give  but  little  a.s- 
sistance  to  the  derision  of  this  que-Mon.  The  ,"-reat' 
piinei].les  of  tiie  law  of  empire  nuist  determine  it,  and 
the  polilica'  history  of  England  affords  particular  illus- 
trations of  it."  Thi.s  course  must  again  be  pursued,  in 
illusti'.tthig  the  ipiestion  of  tb.e  alienage  of  the  Ameri- 
can citizens,  which  may  be  inrpdred  into  under  two 
heads  : 

Jst.     How  aliens  may  become  subjects  ; 

2d.      How  subjects  niiiy  become  aliens. 

As   .:,  the  first  head  ;   it  is  in  gvnerii  true,  that  an  al- 
icn  b<,rn,  condng  int..  Kuglaml.  and  .b-iii,,;.;  to  become 
a  subj.Tl,  vanuot  be  iiaturalized  but  by  parliament,  ihat 
is,  wltbuiif  tlie.'oiK.Mit  .■!tlic  n.tiun:  this  ..f.'ms  to'bav 
bron    ,Mlw;i\sth,'   l;.w  c.f   Kii-laud,  though  it   wa.sothcr- 


iii  Xoiiiiau<!y,  wlu're   tlie  priin'e  might    nat- 


wisa  of 

urulizc.  An  act  ..f  naim-idization,  tlun  ubtaiiu'd  from 
r.'u-liament,  cures  the  aliens  disabilities,  as  if  ho  had 
been  born  in  England,  and  by  apt  clauses  an  act  of  ..at- 
urulizjaiou  may  be  so  made  as  to  cure  other  disabilities; 

•Coko,  Litt    178. 


•w^-- 


R    A- 


or    THE    LAW    OF    NATIONS. 


eei 


yet  is  it  inaccurate  to  say  that  a  person  may  be  nahiral- 
ized  hy  I.eing  Imrn  in  any  dominion  of  the" King  while 
he  was  Kir.o-  of  England,  or  born  upon  the  King's  seas, 
or  born  under  the  statute  of  Edward  III.  r/e  mUi-s-  nltm 
mure  ;  fir  such  subjects  never  were  aliens. 

During  the  Lite  r-gn  the  parlianuM.t  extended  the 
benefits  of  naturalization  to  such  foieign  protestants,  as 
should  reside  f)r  a  limited  time  in  tiic  King's  planta- 
tions %  and  protestant  olficers,  being  Ibreigners,  were 
naturalized  by  parliament  upon  performance  of  special 
services  ;  and  Ibreign  seamen,  upon  performing  nautical 
services  on  board  British  shipping.  The  colonial  assem- 
blies did  pass  acts  of  naturalization,  which  were  limited 
in  their  operation  by  several  statutes  imposing  disabili- 
ties on  aliens  and  denizens;  they  were  Ixmnd  also  by 
the  limited  nature  of  their  jurisdictions,  and  at  the  be- 
ginning of  the  present  reign,  a  general  instruction  was 
givei  l.y  the  King  to  his  governors  (,f  colonies  not  to 
as.vent  to  any  act  of  assend_)ly  granting  naturalization  to 
any  foreigners,  as  such  acts  might  trench  upon  the  stat- 
ute law  of  the  land,  and  thus  operate  against  the  policy 
of  the  state. 

Yet,  \"entns  hath  reported  Sir  Matthew  Hale,  the 
chief  baron,  to  have  said  in  Lord  llolderness's  ca.^e,  that 
'•>aturalizali(in,  according  to  our  law.  can  onlv  be  by 
I-arlia.,i.Mit,  and  not  otiieiwise  t."  There  nnist  be  siu'e- 
h  .some  mi-iake  here,  as  such  a  , judge  could  not  have  so 
far  allowed  his  vigihuice  of  olj^crvation  to  have  shor,- 
bered,  as  to  .siy  that  naturaliz'ition  cannot  be  otherwise 

•7  Geo.  II  oil.  21;  13  Geo.  II.  ch   4;  '20  Geo  II.  oli.  15,  -Geo.  Ill 
ch.  25;   13  Gea.  III.  cli.  Zj;  2J  Goo.  III.  ch.  20. 

t  1  Vent.  4l'j-20. 


'\ 


! 


_.-'   .  ft 
■J  V   - 


i*! 


6G2 


OPINIONS    OF    EMINENT    LAWYERS. 


than  by  parliament.     The  chief  baron,  it  seems,  did  not 
advert  that   thousand.s  and  tons  of  thousands,  millions 
and  tens  of  millions  of  p- ople  have  been  naturalized  by 
the  act  and  operation  of  law  and  tluis  became  subjects. 
Mr.  Wallace,  who  ar«,aicd  for  the  defendant  in  :he  case 
of  Campbell  and  Hall,  remarked,  what  may  well  be  re- 
membered, <'It  is  not,  as  formerly,  when  the  conqueror 
gained  captives  and  slaves  and  absolute   rights  by  the 
law  of  nations,  but  now,  the  conqueror  obt'vins  dominion 
and   siibjects."     This  beneficial   change   probably  took 
place  as  early  as  the  age  when  tiie  ravages  of  the  Danes 
were  softened  hy  the  introduction  of  Christianity  or  pre- 
vented by  the  ])rogrcss  of  civilization.     There  is  howev- 
er but  little  in  our  law  books,  as  nath  been  already  inti- 
mated, of  naturalization  by  conquest;  for  slow  is  the  pro- 
gress of  jurisprudence  as  a  science:  yet  was  it  said,  "  If 
the  King  of  England  make  a  new  coinpiest,  the  persons 
there  born  are  his  subjects;  but  if  it  bo  taken  from  h''m 
again,  tiie  persons  there  born,  afterwards,  (after  being 
conquered,)   ar.'   aliens*."     This   was   saying   but  very 
little  in  ad\ance  of;-  more  rational  c(",siruction,  as  it  is 
not  said  that   tiu'  alien  ,)(Mtpl(>  who  h;.(l  been  conquered 
by  the  arms  of  the  crown  became  subjects  of  the  crown 
by  act  and  ojieration  of  the  law.     It  is  not  ea  >v  to  as- 
certain the  epoch  when  the  law  became  thus  understood; 
1  .should  guess  (hat  such  a  princl^  .,  of  law  became  prev 
alent  .soon  after  the  arrival  of  the  Normans,  who  argued 
vei-y  acutely  aliout  sovereigiit\   and   su])jection.      It  was 
certainly  un(lcr>too(l  as    i  ,nly  as  the  reign  of  lleiiiv  It. 
when  liu'  people  of  Ireland  weiv   sup[)osed    to  have  be- 
come his  subjt'cis,  from  his  con<iuest. 

•  Dyer,  224;  VaugUan,  281  2. 


OF    THE    LAW    OF    NATIOxN'S.  663 

Let  us  now  listen  to  the  soft  voice  of  Lord  MansfieW, 
when  delivering  the  jiulgment  of  the  King's   Bench,  in 
the   weli-known  case  of  Campbell  and  Hall.     "  In   the 
acquisition  of  conquests,   it  is  linrted  hy  the  constitu^ 
tion,"  says  he,  "  to  the  King's  authorit;  ,  to  grant  or  re- 
fuse a  capitulation;  if  he  refuse,  and  put  the  inhrb-tants 
to  the  sword, all  their  lands  belong  to  him;  if  he  receive 
the   inhabitants   under   his   protection  an.l  grant  them 
llifir  property,  he  has  the  power  to  iix  the  conditions  ; 
h.?  IS  entrusted  with  making  'lie  treaty  of  peace,  and  he 
may  yield  up  the  conquest,  or  retain  it,  upon  such  terms 
as  he  shall   think   lit   to  agree  to."'     These   powers,  (in 
the  King,)  no  man  ever  disputed;  neither  has  it  hither- 
to been   controverted  but  that   the  King  niiglit  change 
part  of  the  government  of  Granada,  or  all  the  political 
form  of  the  government  of  a  conciuered  dominion.     He 
afterwards  added,   "  it  is  not  to  be  wondered  that  an  ad- 
judged case  in  point  has  not  been  produced;  no  dispute 
ever  was  started  before  upon  the  Kir.::'s   legi.slative  au- 
thority  over  a  ccnuiuesi ;  it  never  w.i^  denied  in  West- 
minster-hali;  it  ne^   '•  was  questioned  in  j)arliament ;  it 
was  so  decided  m  Calvin's  case."     Lord  Manslield  ihen 
run  over  the  history  of  the  conquests  made  by  the  crown 
of  Fngland,  in  order  to  c.mlirm  and  illustrnte"  his  judicial 
docirines;  begiiming  with   that  of  Ireland   and'endin^ 
with  ;Uat  of  New  York.     In  all  tii.,.se  ca.^es  of  conquest" 
the   previous   aliens  became  subjects  cf  the  crown,   by 
sub,v:equent  conquest;  and  ..f  course  were  virtually  nat- 
uralized,  by  the  act  and  operation  of  law.      'The  con- 
quered inhabitants,  once  received  under  the  King's  pro- 
tection,"  said    Lord    Mansfield,   in  judgment,   "  became 
subjects,  and   were  to  be   universally  considered  in  this 
light,  and  not  as  enemies  on   amens*." 
•  Cowpcr'a  Reports,   -04.     But  Lord  Mau.^Gcla,  while  he  paid  the 


664 


OPIMONS    OP    EMINENT    LAWYERS. 


If:.  I 


Tlio  first  opinion  v/liich  I  have   fonn-l  on  suoli  topics 
is  that  of  John  de  Witt,  in  lG(i7,  Avith  the  ivmarks  there- 
on by  Sir  William  Temple  wlio  was  then  ambassador  in 
Holland.     This   opinion,   which  was  called  a   discour.-e, 
was  given  in  coii.seiiuence  of  the  ti'eaiv  of  Bicda,  KJCJ, 
whereby  England  ceded  Surinam  to  Holland  ;  and  Hol- 
land ceded  Nev  York  to  England,  with  pk>iiar\-  right  of 
sovereignty,  pi'opriety,  and  possession.     These  expres- 
sions  were  deemed    by  l)e   Witt,  and   tacitly  acknowl- 
edged by  Temple,  of  sniHcient  force  to  transfer  the  alle- 
giance of  the  Dutch   colonists  at  New   y(ak  to  the  En- 
glish crown,  who  thereby  became  sul);e';t-;,  as  Lord  Mans- 
field remarked,  and  ceased  to  be'considered  as  enemies 
and  aliens.     The  next  opinion  wlTudi    I    have    found   is 
that  of  the  attorney-general  Pratt,  in  August  17-jri^  who, 
with  the  policitor-general  Yorke,  wns  consulted    bv  the 
hoard  of  vusicmis  on  the  effect  of  the  recent  capitulation 
of  Guadaloupe.      His  opinion  was,  that  this  islind  must 
be  considered  as  now  one  of  the  British  pliintations;  the 
right  of  sovereignty  l)eing  changed,  the  whole  island  as 
the  King's,  in  .ight  of  conquest,  and  the  whole  colonists 
as  become  hi.s  Majesty's  subjects  •.     Mr.  Solicitor-gener- 
al, C.  Y^orke,  gave  a  separate  oi>inion  on  that  occasion  to 

greatest  deference  to  the  oi)iiiion.s  of  tlio  law  offieprs  of  tlio  crown,  wlicn 
formally  given,  sec:. is  not  to  have  been  aware  of  the  opinion  of  the  At- 
torney-general Northey,  in  1701,  with  regard  to  tlio  [lait  of  St.  Christo- 
pliCrV,  ilion  recently  ton.|Upred.  "Her  Majesty  may."  .siid  Northov, 
■■•  if  .slie  sinill  l)e  .so  pleased,  under  her  great  seafof  Kn.trland,  direct  that 
the  like  duty  (of  four  and  ali.ilf  per  cent.)  belevied,  for  goods  to  he  ex- 
ported, fr'uu  the  -onuuered  part;  and  t!iat  co  imiand  will  hen  law  there; 
her  Majesty,  hy  her  prerogative,  being  enabled  to  nialie  laws  that  will 
b'nd  places  obtained  by  eonnnest,  and  all  that  .shall  inhabit  therein." 
This  proves  also  that  tho.sc  coni(nered  people,  beins  now  oliedient  to  her 
power,  were  Jubjecf.s  and  not  aliens;  as  she  could  only  ic-islato  for  such 
a  people,  by  acts  under  the  groat  seal  of  England. 
*  Sec  this  opiuiou,  uuder  tiiiii  Lgad. 


OF    THE    LAW    OF    NATIONS. 


6(35 


the  same  effect:  "I  am  of  opinion,"  s-iid  Ik-,  '4hat  Gua- 
daloupe  is  now  to  ha  considered  as  a  plantation  or  terri- 
tor}^  belonging  to  the  King  hy  conquest ;  and   the  peo- 
ple  thereof  owed   in  consequence  an  allegiance  to  Lis 
Majesty,  as  his  subjects  resident  in  a  ))lantation  behmo^- 
ing  to  liis  crown  *.'     .Yet  some  doubts  being  entertained 
by  persf)ns  abroad  and  at  liome,   whether   the   Frencli 
and  .Spaniards  who  remained  in  the  ceded  countries  af- 
ter the  peace  of  l7'"-3  were  aliens  or  subjects,  the  attor- 
ney-general, Norton,  gave  it  as  his  opinion  to  the  bcjard 
of  trade,  that  'those  French  and  Spaniards  are  not  to 
be  considered  in  the  light  of  aliens,  but  as  his  Majesty's 
liege   subjects/'     Yet  the   bill   in  parliament  whi<'h  he 
advised  for  (piieting  (hose  doubts,  was  never  passed,  por- 
hape    never  proposed  ;  as  Aviser  men  than  Norton,  prob- 
ably, considered       ch  advice   as  weal- ;  the   hwv   beino- 
clear.     Who   could   doubt,    whether   such    French   and 
Spaniards,  being  the  King's  subjects,  and  not  aliens,  Avere 
not  entitled  to  the  rights  of  subjects  !     Loid   Mansfield 
delivered  it   as     lie  judgment  of    the  court   of  King's 
bencii,   in  the  before   ni'.ntioned  case  of  Campbell   and 
Hall,  "that  the  law  and  legislative  governin-iit  of  eve- 
ry dominicm   eciually   affects   all   persons  and   property 
within   the  limits  thereof;  and  is  the  true   rule  for  the 
decision  of  all   ([uestions   arising   there  :  whoever   pur- 
chases, lives,  or  sues    there,  puts  himself  under  the  hrv 
of  the  place.     A.i  Englishman  in  the  inland  ol"  Minorca 
the  isle   of  Man,  or  in  the  plantations,  has  no  ])rivile"-e 
distinct  from  the  natives  I ."     I  have  now  delivered  ex- 
plicitly what  has  occurred  to   me  on  this  first   head  of 

*  Sec  this  opinion  under  tliis  hciJ. 

t  Sec  the  report  of  the  case  of  Campbell  and  Hall.— Cowper 

8d 


!■ 


y 


Ml 


006 


OPINIONS    OF    EMINE'.T    LAWYERS. 


arsumcntatioii,  Imw  aliens  mav  hecom(>  subjcctis,  which 
we  now  see  must,  aiul  mii_\ ,  be  (lone  bv  act  of  parlia- 
ment, or  by  the  operation  of  law.  By  such  operations 
of  law,  it  is  not  too  much  to  assert,  that  there  have  been 
acquired  t'.  the  British  empire,  since  the  commcucenient 
of  the  p'esent  reiirn,  forty  millions  of  snl)jects. 

Secondly,  I  will  n  )\v  ])roceed  under  this  second  iiead 
to  in([uire  how  subjects  ni;'y  become  aliens  .'  The  per- 
sons and  the  ])roperty  of  the  English  people  have  been 
guarded  wiih  great  anxiety  by  their  laws,  which  have 
made  surety,  in  those  respects,  double  sure*. 

Yet  did  the  common  hiw,  as  we  may  learn  from  Brac- 
ton,  allow  of  disfranchisement  and  of  banishhicnt:  an  in- 
dividual might  be  interdicted  his  province,  his  city,  or 
his  town;  or  he  migh'  have  been  interdicied  his  king- 
dom, for  years,  or  for  life  ;  and  abjuration  was  a  legal 
exile,  as  well  l)y  the  statute  law.  as  by  the  common 
law  t- 

Yet  neither  tin?  law  of  exile  nor  the  law  of  security 
applies  to  the  present  o])eration,  which  relates  to  many 
subjects,  not  to  one  subject;  and  which  tunis  upon  cir- 
cumstances of  national  policy,  and  not  upon  points  of 
judicial  jiractice  ;  it  involves  this  high  consideration  of 
public  interesi,  whetlu  r.  if  the  slate  be  in  aan^  t,  the 
lights  ol  the  lew  may  not  be  sacrificed  tn  he  benefit  of 
the  many:  and  the  foregoing  considerations  lead  onto 
the  ini[uiry,  whether,  as  subjects  may  ln>  obtained  by 
the  act  and  operation  of  hnv,  subjects  mav  not  be 
reliiKjuished  also,  by  the  act  and  oi)eration  of  law. 

*  l>y  tiip  groat  charter,   ■  uil^\  ;ia.s  Icon  so  often  eoi;Grnie<l,  and  by  ths 
greatest,  mk\  he-'t  csplanato-v  utt  of  the  2bth  I'.d.  III.  eh  3. 

t  West,  the  second,  c.  35  ;  Sclden  Mure  Glaus.  12;  Molioy,  De-jure 
viariiuiw,  358,  361. 


OP    THE    LAW    OF    NATIONS. 


667 


The  King  certainly  cannot,  by  any  r-pocial  act,  dis- 
franchise a  particular  subject :  though  by  his  judges,  sit- 
ting in  '''s  bench,  a  subj"ct  may  be  outlawed  on  pioper 
process  for  that  end,  operating  upon  the  demerits  of  the 
pfcrty  ;  yet  the  king,'  by  authority  of  that  high  trust 
wherewith  he  is  '"nvested  by  the  constitution  of  making 
v-ar  and  peace,  may  relinquish,  by  freaty,  the  subjection 
of  many  sul)jecis  ;  as  in  the  perlbrnipnce  of  this  trust, 
the  act  of  the  King  virtually  includes  the  act  ^athe  na- 
tion,  for  if  it  wci'e  otherwise,  l)y  the    understanding  of 


the  h 


0  law  ol  nations,  treaties  of  jjcace  could  never  lie  made 
Ijctwcen  Ijclligercnt  powers.     li(,v  ci  ^iii.<Jili  .yunt  rrlu- 

n,  in  giving  bis  judg- 
se    .     There   cannot,  he  adds,  )jc  a 


iivd,   said   Lord-chancellor  Egerto 
ment  iu  Calvin"s   ca 


king  of  land,    without  subjects;   for  that 


:re  Itut  i ni- 


ne m  in    in 


UJ 


nn-< 


-r-,   neither  can  there  I 


le 


•^Ul) 


without  their  king;   for  then  the  tenn> 
would  not  be  correlatives.     II 


ject>^ 


AW:'  ;>' 


d  sub 


ence  we  w.^x  mle 


as 


iect 
the 


Lord-chancellor  iiitimated,  that  the  t 
sovereignty,  o'-d  subjectiont:  if  the  sui>iect 


rue  C(irrchit:\  IS  arc 


iun  be  with 


drawn,  and  so  admitted,  the  sovereigntv  is  o-one;  if  the 


sovereignty  ,,l-  removed,  then  is  the 


sultjection  gone 


ant 


tlie  sulijection  lieing  gt)ne.  thi?  peopk 
tion,  are  no  longer  suljects;  Ibrth 
which  cj.nnot  exist  without  each  olhciv 


owing  no  siibjec- 
dl 


ie\-  ur"  ail  eorrehitive.- 


On  tl 


-econd  head.  h(n\'  siil)jects  ma\-  l)ec 


oinc  aliens 


any  more   than  on  the   lirst,  it 


IS  no 


t  to  be  wonder 


eii 


a.s 


Lord  Mau-^iield  ]  eiiiarked,  tha'      i  adjudged  case  in  point 
oaniiot  be  pnnliiced  :   no  disp        way  ever  started  before 


as  to  th; 


Kings   ]io\ver.  in  making  a  treaty  of  peace,  to 


reliiiipaish  a  i)roviuce  with  the  allegiance  of  th 
cial.s. 


e  provm- 


* 


His  spopch,  printed  1609.  p.  101. 


tibid.  73. 


668 


OPINIONS    OP    EMINENT    LAWVER?. 


But  ii-  WO  (race  this  point  historically,  the  operation 
of  law  will  i )ec()nie  very  apparent.     The  Lord-eUanctaioi. 
Egertoii  said  what  all  the  judges  indeed  affirmed,  in  ar- 
guing the  case  oi!  Uw  poyi-ii</(l  that  King  II.   iry  II.  had 
England  and  Normandy  hy  descent  from  his  mother,  the 
Empress  Maud;  a     1  An!  ui  and   Main  by  descent  from 
his  lather.Geomy  I'lantagenct;  and  he  that  was  born,  the 
chancellor   went  ..n  to  .say,  in  any  of  the  king's   domin- 
ions, and  under  tiic  kiug's  obedience,  is  the  king's  lieire 
pubject.and  born  ./'/fn/cn  ro/iv :  (for  that  is  the  proper 
aiKt  ancient  word,  which  the  law  of  England  hath  used; 
a.i   1i,l<rn   r;<i.s  Ah'jUu.  <i.I  Ji>iun  vegi'^    /'/'rr/^r/'/';)  and 
therefore  he   cannot  be  a  stranger  or  alien  to   the  king, 
or  in  any  of  bis  kingdoms;  and  by  con.sefpience  is  ena- 
bled to  have  lands  in  England,  and  to  sue,  and  be  sued, 
in  any  icnl  action  inj-  i|k>  s.ame  *. 

Kin-  .b.hii  th,.  \oungc-t  son  of  II.  •ly  II.  lo^t  all 
those^  Frcii.b  doiuinions  to  Philip,  the  I'rcnrh  king,  iu 
1201  1.  T^pi.n  tbi>  tran.sactioii,  whereby  Kngla  d  lost 
so  many  provin. ,  i,;,t  was  the  operation  of  law  /  Is 
it  notappannl  thai  the  pcopl.>  „f  those  |,rMvinccs  no 
longer  iviuaiurd  ,^/  y^VAm  m/zv,  in  obedience  to  John, 
and  that  they  niiHt  have  sworn  fealty  to  riiillp  /  When 
the  sovereignty  of  tho..e  proviuc.  .  -hus  .-eased  to  be  ui 

•  Tho  Lord  ili!im-ll<ir\s  piibli  J„.(i  .sptoch,  ovi,  1. 

t  Brady  sap,  by  Lis  nPgIig,.„,o,  ilist.  i.  .171      Th.  pr-sidrnt  II.  nauU 
toll.,  a  soM„.,vl,:.f  difforoMt  Htury  :   King  .Iol,„,  ^,l■„  «:..  ,  ,„„,  „f  l-V-.n^, 
was  c.tcd  iadoro  tbc  court  of  peers  in  Fra^m,  ,o  bo  judp.d  for  ,|,.,  „.ur! 
der  of  Arthur  :  l.o  oid  i,ot  apj.c.r  :  l.c  was  docla.ml  a  rel..!.  f„r  l,„  con- 
tuinu.y;   ,.i,d  of  .  ,.„.a,uciico,  bis  1  „.ds  were  confi.cated     !„•  was  con 
dcuncd  to  death  tor  tho  .uurder  of  bis  nephew,  eonnoiUod  w.rhi..  tb.  ,u. 
r..d.ct,„n   of  trance:    Philip  annexed    Nnru.andy.  and  Johns  other 
iT.ncb  dounn.ons,  nllbut  (iuycnnc,  to  tho   crowu  of  Fr»noe.-Chroo 
ll.st.  de  France,  i.  1978.     Consult  du  Tillet,  Chron.  nbr.  les   Roys  dc 
Fruuoe,  48,  under  tho  year  i.204. 


OF    THE    LAW    OP    NATIONS. 


669 


the  king  of  En-land,  the  subjection  of  the  people,  with- 
in  the  «anie,  also  ceased  We  may  infer  as  nuich  from 
the  following  records,  M.  4,  Henry  III.  in  dower,  the 
defendant  pleaded,  ,,nod  pfcn.,  est  dr.  pot^^-state  regis 
Fmncia:  ct  rcmlni,  in  Fr<uma :  et  pr:uus„m  est  a  con- 
sibo  re^,.s,  quo</  nullit.,  dn  potentate,  regis  Franria:  rc9- 
pondmtur  in  Augiia  antquam  Angli  rrsp-wdmnt-.r  de 
jurenuo  in  Franria*:  this  the  plaintiffs  attorney  could 
not  deny;  and  thereupon  the  judgment  was,  td.n  sine 
<hct.  There  is  a  record  of  the  7th  Hen.  HI.  [12231: 
L'aroniUs  Norm  nnirr  quod  ad  scrriduni  rr-zs  rulcaiUX  ■ 
which  evinces  that  the  people  of  thc.so  French  provin- 
«-es,  by  the  forfeiture  of  John,  became  aliens  to  Eng- 
land. *= 

The  Lord-chan<ollor  went  on,  in  the  progress  of  his 
nrgument  to  say.  tha^  Henry  111.  had  Aquitain  by  de- 
scent from  his  grandmother  KUvuior,  the  daughter  of 
the  Duke  of  Aqnitaiii;  Kduard  I.  had  the  same  by  do. 
scent,  and  puit  of  Sc(.tland  by  conquest;  Edward  II. 
and  Edward  IH.  had  the  .s.,ue  Uy  desr,>ui  :  and  Edward 
III.  claiuie.l  all  Kranct-  by  ,k..,vnt  In.in  Ins  mothrr,and 
had  the  most  part  f  it  in  possc-.ssiou  ;  and  so  had  Henry 
V.  and  IbMuy  VI.  Now,  adds  the  chancellor,  in  thoso 
king's  reigns  the  subjects  born  in  those  countries,  being 
•  Fitz.  Powtr,  IT. I. 
t  Tlio  Lord  cl.aiia-IlL.r  K^'ortoii's  Hpcodi  on  tiio  Pnstnati,  l!),  M 

X  Hvin.  Foed.   I.  -r,0       the  writ  tluToi,,   ,..,„( r.i  w.i.s  tested,  l.y  tho 

jMst.f.ary  of  Kn.h.nd.  who  knox.  ,l„.  nu.unnjr  of  |„^  own  t.,  n. ,  gh.rj 
voucl>..d  ,h,.  CMM.  of  ft  Norman,  „|,.,,  witl,  sum,.  |;„l'1  .1,,  l,aa  r.,l,l„..i  di 
vers  of  11,0  kin^-.  Rul.j.rt.s,  ,„  tl...  narrow  .s,.,,Hi  a,.d  who  iMMOLMikcD 
and  nr.ai^rncd,  fl.r  .Norman  was  fo„nd  puilty  only  of  U-Uuy,  and  tl  o  rost 
..t  .r.aMM,;  |..r  that  N„rmandy  l,..,ng  lo»t  by  kmg  Jo'un,  »,..,  out  of  ihc 
aih-«,unc,.  of  Kd.  in  and  tho  Norman  was  accoiincd  an  alien.  .Shard 
([uoled  40  na«io,  pi.  -ZX ;  and  s.jo  Cidvi«-a  cw.o,  Tth  report. 


670 


nPT.VIONS    OF    F.Ml.\E\T    LAWYERS. 


then  under  t'u'ir  nhLMlichco,  were  no  aliens,  l)iit  capable 
of  laii'l-  ill  iiii!  I.iiid  •.  Ilistni'v  must  toll  how  those 
king-sot'  Kngi;iinl  lo^t  lliose  doiumions  in  France  :  .did 
the  obedience  of  (lie  people  (<!' those  dominions  o'.ntiniie 
to  En,i;lan(i  .'  N,.:  when  the  sovereiirnty  of  the  kin,-,-s 
of  Eniil-'d  wa<  lost,  the  suhjection  of  their  French  sub- 
jects al-c  (•.•as(d.  and  iheiu'eforth  liecaine  aliens  to  the 
crown,  a. 1(1  were  (herelure  inr-apable  of  holdin"-  anv 
lands  ill  Fn-laiid  :  a^  we  may  learn  from  the  before  ci- 
ted autlii)riti,'s  and  record-;,  and  even  from  Bracton. 

Hut    (he   aptest  prec(  ilent  i'oi-   the    Ameriear.    treatv, 
17S2-;J,  whi(di  can   be  found  in  tiie  records  of  Fni^dand, 
is  the  tiealy  ',1   Nortii.impton,   D'.L'S,  that  acknowledired 
the    iiiilc|)cii(U'i;,'e   of  Scotland  t.      The   thn.'e    Edwards 
endcavoied,    by    ihc    inti'     les,    the  fraud,  and  force,   of 
more  than  fnity  years,  to  snlnhie  Scotland.      The  coun- 
try was  a]^ain  ami  a-ain  (.v.tiiui  :   the  p-npic  and  their 
chiefs  fell  in   the   lield   or  bled   .,n  (lu-  <,Mllold  :   and  the 
limbs   of  the  illu-^fiion.  \Vall:-ce  were  e\hibit<'d  on   the 
public  ])laces.      V,|    ,Mi(di    wa~tlie    pei-everin,;;  spirit  <>f 
»'"■  ii.ni"ii.   Hi(h  the    ^kilfiil  valu.df   their  l.'aders.  such 
<!"'  Hnr,,n(|ii,.iiil,l,.  m.i'Miauimity  nf  tjicir  kin<r,  that  after 
a  >tiiiL'-b'  .if  more  tb;in  forty  year<,  they  con^peHed   ivl- 
ward  III    with  ilica-int  <^f  his  parhaincut    to  a.'knowd- 
«'dL:e  tbi>  iinlcpcnd.'nce  o|    Si'otland  J.      Tbi'  sovereiu;ut v 
•  Sptooh,    lOOit.  Gl,  5. 

t  There  vtns  a  previous  net  of  parliament  mnde,  nt  Vork,  .  tlio  L^l 
of  March,  i;i-,ir-S,  entitled,  Jlr/u.rutio  si//}crioii/ufis  .^y//i<e,  Rjiu 
Food.  iv.  J37  Tills  act  of  pnrliuiiient  wont  mu-li  Leyoiid  the  inuro  i 
loa»o  of  the  superiofity  :  it  roliiniiii.slied  the  cuiiufry,  or  kitijrdwii,  aceord- 
iiig  to  iln  iiiitient  limits;  and  it  released  ull  subjection,  Service,  duini,  or 
doniaiid  of  the  country,  or  its  penplc. 

t  Soo  tho  ciiiieellod  Par.  lloe.  85-7;    4  U>m,   337?.     Sir  Kdwani 
Coke,  and  8ir  ^t.-if    Hale,  in  >!iaoUMing  the  connoiioii  of  the  Kngli.sh  and 


or    THE    L4W    OV    .\ATIOX; 


G71 


of  England,    and  tlio  .«ul 


nounccd  ;   tho  i)coi)l('  ol'  Scotland 


iniission  of  .Scotland,   were 


re- 


he  free,  and  bucan 


wore  iickf.owlcdged  to 


le  ot   course  aliens  to  En-rland,  as  the 


suoscquent  events  evince,    as  tlie    treatv  df   Pcitli  * 
1;)-5.)  plaiidy. shows;  and  owinir  to  tl 
pie  of  England  and  ol'Scotland 


m 


ose  ( 


mses.  ll 


le  peo- 


er  at  the   epoch  ol"  King  .JanicsV  a 
sonings  of  the  judges  in  Cal 


were  aliens  to  each  oth- 
ceession    as  the  rea- 


(, 


vm  s  case  demonstrate, 
onie  we  now   to  the  case   of  Calais,   which  is  sohk 


\v 


hat  singular ;    in  l.MT 


(,  It  was   taken  h\  Edward   III. 


who  invited  English  uk  rch:!nts  to  settle  in  it 
it  now  partook  of  a  mixed   natun 


so  that 
of  a  connnest   first. 


and  of  a  cohmy  afterwards,  something  like  tlie  condition 
of  St.  Christophers  after  its  col 
In  15o8,  Calais  was  retaken  hv    !• 
two  hinidre(l  and 


oin'zation  and    connr.est 


ranee,  a 


t  tl 


le   eiK 


1   of 


leven  Acars  eoniiexi 


on. 


uer  the    treatv  ol'  ('1 


•)■)!),  uu- 


Kileau  ( 'ai 


nore- 


Cal 


main  eiglit  years  in    possessi 


lis  was  to  rc- 


on   ol 


restored,    pro\  ided  (>ueen   Eli/.aliel 


iiice.  and 
ll    IniiaxiM 


tl 


u  to 


1  widl  in 


the  mean   timet.      But    Kli/aoeth  and  Cecil   were  med- 
(llers  hv  natuii' ;  and  th 


of  Scotland   and  of  |< 


ley  woidd  inti'rfere  in  the  allairs 
lanee  :  so  Calais  remained  in  the 
lends  of  the  con.|nerors.  Tiie  sovereignty  ..f  Calais 
seems  thus  to  have  remained  during  those  ei;,dit  vears 
ill  a  sort  of  altevaiice 
>\  ho  were  horn    tih  le  were 


iiid  duriim-    thai   per 


<'learl\-  a! 


I  (■  1 1  ■ 


i('(|j   person.^ 
as  the\   were 


Scots     lllWS.     wrnli'     l.llt      iill 


,■!■■    lllcy    •-IM'lll    tldl     to    II 


troiiij  111"    Nnrtl 


VII,  l!i;it   tlui 


ililiililiin  Hiis  iiiadi'  iiiidcr  llii'  ;nill 


o  rw  tli:it  it 


iiHniitit :   but,  Sir  lJul»tn>(lc  Wliiiid 

poaic  lirtwccn    KiijrlniMl  and  ^^iotliiiul,  'J  Kil.  111. 

pariianin  •,  at  Northuii-;  lun."— CW/«rM/ira  Jurith 


•t'  l\MI   Ml  t.S    l.f 
■■^,    11  I'd   M1\.S,     ' 


par- 
'the 
"luluiicd,  liy  the 


(ta,  ii.  331. 


>ro  tlio  licniy,  in  Av<  .-l,iiry,  ai-'i?. 


t  r  |{ 


111.  .lO.'i,  k* 


>.*wi-  ,  tho  presi.li'iit  H.Miault'sAbr.  Chron.  i.  47C-7 


f 


»'  \ 


lol.- 


672 


OPINIONS    OF    EMINEXT    LWVYERS. 


b'lrn  out  of  the  liijeance  of  flic  kiiiir,  and  in  a  country 
out  of  the  possession  of  Jio  crown.  The  wliolc  people 
afterwards  were  considered  as  aliens,  by  operation  of 
law;  as  the  sovoroiiiiity  of  tli(>  town  nnd  the  subjection 
of  the  people  were  h^th  lost  to  Eiifrlnnd  for  ever. 

Let  us  now  advert  to  the  condition  of  Sniiniun  and 
Ntw  Vork,  nndei  the  troatv  of  Breda.  KiliT,  when  Kn"-- 
land  ceded  th<'  first  to  !I(.!land,  in  full  sovereijxntv,  pro- 
priety, and  possession;  while  Holland,  in  the  .sime  man- 
ner, ceded  New  Vork  to  En^liMKl.  Durini:  the  eflluxion 
of  the  preceding;  centui_\ .  the  law  of  nations  hiul  been 
very  much  discussed  by  (irotius,  8elden,  and  otlier  em- 
inent jurists;  and  statesmen  now  arirued  ever\-  ca.se 
arisinn;  from  events,  with  more  accuracy,  and  decided 
with  more  pre>  ision.  Tiie  disputes  ai-isinu;  out  of  the 
treaty  of  Breda,  came  to  be  settled  by  .lohn  do  Witt  and 
Sir  William  Temple:  de  Witt  ^-ave  hi^  ojiiuiou  in  a  dis- 
course, which  is  hereinafter  printed;  and  he  was  an- 
swered by  '['cinple,  whose  paper  is  aUo  juiuted:  it  was 
plainly  insisted  on  by  the  oi;e.  and  t:)  ith'  a<;reed  bv  the 
other,  that  tile  Kuirlisa  who  n-maiued  in  Surinaui  be- 
came Dutch  subjects  so  (  .luipjetciy  that  they  })ecame 
aliens  to  Kngland,  and  could  not  even  appl\-  to  their 
native  country  in  any  luaTuier.  for  aid  or  consideration, 
tonsisti'ut  with  the  law  .f  nations.  In  the  s.aiiie  man- 
ner, the  Dutch  peojiK'  at  Manhattan,  as  New  York  was 
llieii  called,  becuiie  completely  ^;nglish  subjects  and  al 
ieiis  to  thi'ir  native  land  *. 

*  III-  to  111'  ri'jjrcltcil,  llint  Sir  L-oiicl  .Tciikiiis,  wiio  wn."  tlwii  tln'  Irjul- 
ing  civilian,  did  not  aiiswc  !).•  Witt;  .n^^  wp  should  liavo  li.'id  diM'lo.scd 
(noro  lai^,  flmii  Temple  scciii.'!  to  havo  powi-.-sscd  :  iriv  i  c'oiircl""  Inad  m6 
to.sijppo.se,  tli.it  tlu-!i'  wa.H  no  !  v.  opiiii,),!  .iskrd,  \,y  tlio  r,Mj;li>li  piMrn- 
mniit,  on  that  oci-aaiou.  The  Eiigli.sji  pooplo  wore  aftirwardn  removed 
from  Suriimin. 


OP   THE    LAW    OF    NATIONS. 


6  no 


The  wars  and  the  treaties  of  subsequent  times  do  not 
supply  much  intbrmation,  and  throw  scarcelv  an^  light 
on^  this  hea<l  of  our    inquiry.     The  peace   of  Kyswick, 
1<)!)7,    by    restoring,   generally,   what  had  been  lost  by 
either  party  to  their  former   possessor,   furnishes  very 
little  observation  :  the  main  point  of  that  treaty  was  the 
direct  acknowledgment  of  AViliiam  III.  as  King  of  Eng- 
land,   and    the    dominions    thereunto    belonging.     The 
peace  of  Utrecht,    1713,  ismuchmo;e   instructive:  th6 
conquered  part  of  St.  CWistophers    was   now  resigned, 
in  sovereignty   and  pos.^ession ;  Newfoundland,  wiUi  its 
adjacencies,  were  resigned    in    full  sovereignty  to  Great 
Britain  :  from  this  epoch  the   statute  of  William,  regu- 
lating the   government   and  fishery  of  this  valuablels- 
land,  attached    upon  both.     Nova    Scotin,    according  to 
itsanrient   boundaries,  was   re.-,igr.ed  to  Creat    Britain- 
!>nt  there  .vas  a  proviso  that  the  French   subjects  might 
■"move  if  they   sliould    think  fit;  or  if  they   should  re- 
main, to  enjoy  ther  religion  as  far  as  the  laws  of  Britain 
allowed  :  this  form  of  words  .shows    in  what  manner  an 
act  of  parliament  limits  the  king's  pf)wer  of  making  trea- 
ties; and  there   was    .ilso  a   proviso,  that   commissaries 
should  be  appointed  to  settle  "who  ought  to  1>0  account- 
.(i  the   subjc'ts    nd  friends  of  Britain  and  of  France;" 
alluding  chiefly  to  the  American  Indians,  a.s  the  frinuls 
"f  '"'111  parlies.      From    Spain,  Britain  obtained  Gibral- 
tar and    Minorca,  in  full    sovereignty,    a.id   iho  a-^wnto 
•nidc,    according  to    former  stipulations;  Gibraltar  and 
Minorca  have  always  been    governed  as  conquests,    but 
the  as-siifito  could  not  be    received,  according  to  form.T 
stipulations,  as  it  was  oj)posed  by  the  nci^  of  navigation. 
Here  are  sufficii-nt  illustrations  of  two  of  our  principles 
of  law  in  respect  to  treaties. 
86 


II 


674 


OPINIONS    OF    EMINENT    LAWYERS. 


"  -si 


T!io  popce  of  Aix-!a-Chapelle,  1748,  does  not  supply, 
though  it  pioN-des  for  mutual  restorations,  any  instruct- 
ive :')sofvation.  Yet  the  war  which  was  then  ended 
ought  to  be  deemed  productive  of  much  information,  if 
it  produced  nothing  but  the  report  of  Sir  George  Lee, 
tlie  j'udge  of  the  admiralty  court,  and  of  the  advocate, 
attorney,  and  solicitor-general,  Paul,  Ryder,  and  Mur- 
ray, on  the  Prussian  ships  carrying  neutral  property*. 
There  were  published,  about  that  time,  various  worka 
on  similar  topics,  Mhich  certayily  made  the  powers  of 
J]urope  much  better  acquainted  with  the  instructive  doc- 
trines of  the  law  of  nations. 

The  jK-nce  of  Paris  ITGo,  as  it  retained  much,  and 
pave  1  it  little  in  return,  left  a  wide  field  open  for  illus- 
tiativo  (-bsorvation.  The  French  King  again  -relin- 
(ini-hcd  the  whole  of  Nova  Scotia  with  all  its  dependen- 
cies, Cape  Bret.ni  and  the  other  islands  in  the  gulf  of 
St.  Lawrence,  Canada  wi'hall  its  de])endencies  and  peo- 
jile.  Tlie  King  of  Great  i3ritain,  on  his  part,  granted  to 
the  inhabitants  of  Canada  the  liberty  of  tlie  catholic  re- 
ligion ;  iie  allowed  the  Canadians  the  freedom  of  selling 
their  estates  to  his  subjects,  and  of  letiring  within  eigh- 
iecn  months;  but  there  is  nothing  said  on  the  ligeance 
of  the  Canadians  if  they  should  not  retire.  The  sover- 
eignty. pro])ertv,  and  possession,  of  tiie  cnuntrv  of  Can- 
ad  i,  was  ceded  by  the  Most  Christian  King;  and  of 
course,  the  subjection  and  faith  of  the  inhabitants,  who 

•  Co//'vf<i>iirt  JuriiUai,  i.  No  T).— Tlicro  !.■*,  \\nv\n,  n  nofo,  utating 
timt,  'Mhi.s  report  cciiilnins  a  tliorotigh  iiiv(>>li;.'utinn,  aiiil  jiLStification,  cf 
till-  iTiiiciplfNaillierdi  (o,  by  tlic  cdurt  nf  niliiiiralty,  in  Kiiglaiul,  in  eaJes 
of  captiiro  of  tlic  ships  ami  proiirrty  of  ni'utr.il  power?',  in  timo  of  war.  It 
w;is  LMimposcd  on  a  ..iciuor^ihlo  H<-ivi>ii.,M^  l,y  il,,<  uniteil  abilities  of  tlio 
proat  law  i  iVut  rs  of  ihp  i-rown  ;  and  has  ever  since  been  receiveJ,  as  tho 
itauJard  liutl.urity,  in  ca.'ies  ol  that  nature." 


OP   THE    LAW    OP    NATIONS. 


G75 


thereby  became  subjects  of  the  crown,  and  who,  of  course, 
became  entitled  to  the  several  rights  of  Mie  Briti^^h  sub- 
jects.    The  King  restored  to  France  the  islands  of  Gua- 
daloupe,  Mariegalante,  Desirade,  Martinico,  and  licli.sle; 
withaprovi..othat  the  King's  subjects,  who  nn'-ht  have' 
settled  in  any  of  those   islands,    might  retire  with  their 
effects  at  any  time  within  eighteen  months  ;  but    tliere 
is  nothing  said  of  the  King's  subject^  whom  he  iud  con- 
quered thereon,  or   who  might  have  been  born  ,.ft.M-  the 
conquest  and  before    the  restoration ;  they    were    relin- 
quished, by  operation  of  law,  as  well  as  in  fict.     Those 
clauses  in  this  treaty,  and  those  circumstances,  c.n.e  up 
fully  to  the  law  which  has  been  alreadv  intimated  fn.m 
Dyer  and  Yaughan,  "  if  the    King  of  England    make  a 
con(|  lest,  the  persons  there  born  are  his  sub,ieets:  but  if 
it  be  taken    from  him  (or  he  cede  itj    ^he  person.  tb;.re 
born  („tter  such   cc-ssion    or  capture)  are    alicav f  l,ut 
how  did  they  become  aliens?     The  answer  mu^t  be   by 
act  and  operation  of  law.     This  general    principle    may 
be  illustrated  by  other  clauses  of  this  memorable  hvatv. 
The  Christian  King  ceded  Grenada  and  the  Grenadines 
to  Great  Britain,  with  the  same  stipulath.ns  m    lavor  of 
the  inhabitants  ;  who  might  retire,  but,  if  thev  remained 
k'came  subjects.     The  neutral  islands  were'partitioncj 
HI  this  manner:  St,   Vincent,  Dominica  and  Tob,,.-o  re- 
imuned    to    Great    Britain  ;  St.  Lucia  was    dclncrdto 
France;  and  from  this    stipulation  it  followed,  (1,,.,(  ,|,e 
French  people  became  English  subjects  ;   nnd    the    Iav. 
lish  planters  o,,  St,  Lucia  beca.ne  Frencli  subjects,  if  tiny- 
remained,  by  the  act  and  operation  of  law.     Great  Brit- 
ain and  Spain  arranged  their  conquests  ia  this  manner  : 

•D7  22'.;  Vaugh.  281-2. 


6T0 


OPINIONS    OF    EMINENT    LAWYERS. 


Britain  restored  to  Spain  the  Havana  and  part  of  Cuba  : 
Spain  ceded  to  Britain  the  Fhiridas ;  and  the  island  of 
Minorca  was  ceded  to  Britain,  in  the  same  condition  as 
when  conquered:  so  tliat  the  Spanish  people  of  this  is- 
land, who  had  become  English  subjects  when  originally 
conquered,  became  again  English,  bj  a  sort  oi  jus poHli- 
minii  *. 

The  treaties  of  Versailles,  1783,  are  less  glorious,  but 
full  a.s  instructive:  Great  Britain  restored  to  France  St. 
Lucia,  and  ceded  Tobago.  The  British  sul)jects  in  both 
were  allo'yed  to  retain  their  possessions  or  to  retire  with- 
in eighteen  months  :  France  restored  to  Great  Britain, 
Grenada  and  the  Grenadines,  St.  Vincent's,  Dominica,  St! 
Christophers,  Nevis,  and  Montserrat,  with  the  same  stip- 
ulations in  favor  of  the  French  planters.  Great  Britain 
ceded,  in  full  right,  Minorca  to  Spain,  with  the  same 
stipulations  in  favor  of  British  subjects:  Great  Britain 
also  ceded  to  Spain  the  two  Floridas,  with  a  similni 
proviso  that  the  British  subjects  might  retire ;  and  Si.ain 
ceded  to  Great  Britain  the  Bahamas,  with  a  similar 
stipulation  in  favor  of  the  Spanish  subjects  who  might 
there  remain.  It  is  quite  apparent  from  the  f.^regohig 
facts  and  reasonings,  that  those  alterations  of  sovereign"- 
\y  changed  the  nature  of  the  ligeance  of  the  people ;  so 
that  tliey  were  aliens  or  subjects,  accoding  to  the  na- 
ture of  their  residence    and  subjection.  ^ 

After  this  full  discussion  of  .so  maiiv  treaties  let  us 
again  advert  to  the  definitive  treaty  with  the  United 
States;  when  this  subject  was  considered  in  the  hou.se 
of  lords.  Lord  Loughborough  said,  that  the  King  could 
not,  in  virtue  of  his  prerogative,  cede  Canada  or  Florida 

,'^1"  '"•■"•'"'  "^  Fabripa-s  and  r,,>.Rral  Mo.stvn,  wl.i<-li  wns  derided  in 
17/3,  by  a  vordiot  of  three  thousand  pound.s  n<;ain.st  tlie  (M-rernl  evin- 
teg,  suiliciently,  iLat  the  Spanish  people  of  Minorca  were  Eudis'h  sub. 
jectg.  '^ 


OF    -HE    LAW    OP    NATION.S. 


677 


without  the  sanction  of  parliament.     The  Lord-chancel- 
lor, when  he    delivered   his   sentiments,   treated    Lord 
Lough .jorongh's   opinion  with  no  great  res))ect.     What 
has  been  so  often  done  before,  could  not  be  done  now : 
But  what    sort  of  logic  is  it,  to  reason   against  facts  ? 
When  the  same  subject  was  under  consideration  in  the 
house  of  commons,  with  respect  to  the  powers  of  the  pre- 
rogative, Mr.  AVallace  and  Mr.  Lee  maintained  that  the 
King  could  not  abdicate  a  part  of  his  dominions,  or  de- 
clare any  number  of  his  subjects  free  from  obedience  to 
his  laws:  the  contrary  was  asserted  bv  the   attorney- 
general  ;  and  both  parties  pledged  themselves,  if  the  mat- 
ter should  C(mie  regularly  into  discussion,  to'make  ^ood 
their  several  opinions  *.     But  the  day  of  discussion  nev- 
er came,  ami  all  wise  men  saw  that  such   extravagant 
doctrines,  though   they  might  have  done  verv  weH  at 
the  sad  epoch  of  civil  war,  could  not  be  sobeVly  main- 
tained in  time  of  domestic  quiet.     The  King  most  r-- 
donbtedly  enjoys   from  the  constitution  the"  exclusive 
].ower  of  making  wai     „d  peace:  this,  is  a   fundamental 
principle  of  the  law  of  nations;  it  is  one. .f  the  pillars  of 
society  itself;  and  it  has  been  argued  by  writers  on  the 
law  of  nature  and  nations,  that  though  individuals,  an- 
tecedent to  all  society,  (if  such  a  sun.  .ver  existed.) had 
the  right  of  war,  this  right  was  „iv(Mi  up  wlien  they  en- 
tered into  society:  it  is  said  to  be  upon  the  same  ])rin- 
ciple  that  the  King  enjoys  the  sovereign  jiower  o Snak- 
ing treaties,  leagues,  and  alliances   with   foreign  states 
and  princ(>st.     But  was  there  not  an  act  of  parliament 

•  Annual  Register,  1783. 

t  Tf,  however,  it  wore  m-cv^siu-y  I,  hy  nn  or  take  off  taxes,  tlic  king 
cannot  do  thi,s  witliout  tLo  provision  of  parliament ;  if  regulations  have 
been  previously  made  under  parliamentary  authority,  as  in  the  case  of  ■ 


t 


/  !1 


678 


OPINIONS    OF    EMINENT    LAWVERS, 


' ,  I 


made  to  enable  the  King  to  make  a  peace  with  the  Uni- 
ted States  ?  Yes;  yet  is  it  singular  to  remark,  that  the 
said  act  was  not  used:  it  was  neither  recited  nor  allud- 
ed to,  in  either  the  preliminary,  or  definitive  treaty  of 
peace  with  those  thirteen  states.  The  King's  constitu- 
tional power  was  deemed  sufficient,  without  the  special 
statute,  which  had  been  suggested  e.r  ahnndante  ccndela 
by  the  same  spirit  which  suggested  the  repeal  of  the ' 
stamp  act;  and  thereby  created  much  of  the  mischief 
Avhich  was  now  pressed  upon  the  nation  for  remedy. 

The  history  of  our  diplomacy  evinces  t)yj  truth  of  ihe 
general  principle  which  is  recognized  by  every  law. 
King  William,  by  the  treaty  of  Rys«ick,  granted  and 
received  cessions  of  conquests  in  war.  Queen  Anne,  by 
the  treaty  of  Utrecht,  made  some  cessions,  and  received 
more.  King  Geoi-ge  II.  by  the  treaty  of  Aix  la  Chap- 
elle,  agreed  to  cede  and  receive  all  conrpicsts  since  the 
war  commenced.  King  George  ill.  v  the  treaty  of 
Paris,  receive.1  umch  and  cedec'  little.  Bv  the  peace  of 
Versailles,  1783,  when  the  treaties  in  question  were 
made  and  ratidod,  the  Ting  granted  t.  France  fisherie.s, 
factories,  islands,  and  territories,  and  received  much  in 
return  The  King  ceded  to  Spain  the  island  of  Minor- 
ca, and  the  two  provinces  of  (he  Florirla^,  and  sucli  oth- 
er countries  as  might  have  been  taken,  and  received  in 
return  IVom  Spain,  the  Bahamas.     It  was  the  ophno,,  of 

NewfounJland  a.J  Its  fishery,  a  treaty  cannot  warrant  tl,c  repeal  of  such 
reguIat,o),s  ,  as  ihi..  n,.st  be  dune  by  parlia.nent  „r  not  at  all  ■  so,i„  n.aking 
co:n.nerc,,,l  troati,.s,  r,.i,n.lations  are  to  be  made  or  repealed  ,v!nch  can 
only  be  done  l>y  parliament;  and  .f  parbamcnt  disapprove  of  such  a 
treaty,  ,t  nuu.  fall.  All  those  eases  arc  exceptions  to  the  general  princi- 
pie  of  the  royal  power  to  make  war  and  peace. 


OF    THE    LAW    OF    NATIONS.  679 

parliament,  that  too  much  had  been  given  to  those  sev- 
.ral  powers,  yet  this  opinion  did  not  nullify  or  vitiate 
the  treaties:  it  only  operated  upon  the  responsibility  of 
ministers,  whom  it  virtually  removed  from  the  power  of 
doing  further  mischief:  this  is  mei^ely  a  collateral  point, 
which,  according  ro  the  wisdom  of  our  <o.  '^titution,  does 
not  trench  at  al'  upon  the  King's  authority  to  make  war 
0"  peace 

n^hether  thr.  t  vote  of  parliament  extended  to  the  trea- 
ty with  the  United  States  is  somewhat  doubtful  ;  but 
fhere  can  be  no  doubt  whether  that  treaty  were  no't  the 
most  exceptionable.     Why    relinquish,  under  the  pre- 
tence of  settling  boundaries,  countries  Lxrger  than  C  reat 
Britain,  to  which  the  United  States  had  no  pretensions'? 
Why   grant    the   Ncwfour.dland  fishery,   which  Britain 
guards  as  every  man  his  nursery  ?     They  had  no  claim 
to  any  thing  beyond  their  independenccv     In  the  other 
treaties,  the  rights  of  nulividuals  wero  carefullv  guarded ; 
in  the  treaty  with  the  United  Stai. ;  they  were  con- 
temptuously  disregarded.      The    statesmen    who  made 
this  treaty  pleaded   in  vain  as  a  justification,  that  the 
congress  would  have  the  Western  Countries— the  con- 
gress insisted  on  a  right  to  the  Newfoundland  fishery  ; 
the  congress  had  only  the  ]iower  to  recommend  private 
persons   and  their  claims  to  thu  paiiitular  states:    yes, 
the  congress  have  done  nothing  since  b-:L  make  claims 
and  continue  to  make  claims.     If  the  congress  or  the 
president   had  not  complete  authority  to  make  war  and 
peace,  this  defect  had  been  a  fatal  objection   to  the  full 
powers  of  the   negoeiators.     This  ought  to  be  a  beacon 
to  such  negoeiators  wh)  may  be  apj)ointevl  hereafter  to 
treat  with  the  commii^sioners  of  the  United  States,  whose 
full  powers  ought  to  be  carefully  examined. 


.  ''f. 


680 


OPINIONS    OK    EMINENT    LAW  VERS. 


But  whatevi'i-  there   iiuiy  he  in  those  ohjeotions  and 
tlelcnces,  tlie  (|uestion  still  recurs,  could  the  Kintr,  under 
the  authority  and  trust  which  he  possesses  I'rom  the  con- 
stitution, ackno\vled>^o  the  independence  and  sovereign- 
ty of  thirteen  revolted  colonies  /     Could  he  renounce  the 
government  of  the  people  tonning  those  United  Stated 
in  future  I     Could  he  renounce,  of  course,  the  subjection 
of  the  people  /     The  answer  nuist  be  in  tlie  allirrnative; 
he  renounced  at  the  same  time  other   provinces  and  is- 
lands, with  British   people  thereon,  and  no  doubt  has 
been  made  whether  those  territories  have  not   been  le- 
gally ceded   and    the  subjection  of  the  people  constitu- 
tionally chai.ged.     Altei-  the  restoiation  of  peace,  an  a- 
gylum  was  oH'ered  v.ithiji  the  remaining  colonies  to  those 
colonists  who  might  thiid<    tit  to  retire  froui  within  the 
United  States;  many  did  retire,  but  many  more  reinain- 
ea,and  the  question  is,  whether  tliose  who  thus  remained, 
and  were  acknowledged  to  be  tree  from  subjection,  and 
independent    in    their  governments,  could  nevertheless 
claim  the  ])rivileges  of  subjects  i     If  tlie     be  alien  .  by 
the  renu..  'iation  of  their  submission,  they  cannot  claim 
the  privileges   ol   .  ....jects;  and   that  they  are  aliens  is 
clear:  since  they  do  not  poseess  any  one  of  the  charac- 
teristics of  true  and  lawful  subjects,  they  'lave  neither 
^iihj<vtio,   fidos-,  vd  ohc'/ientia  ;  they  lost  all  those  char- 
acters of  subjects  by  the  act  and  operation  of  law,  work- 
ing upon  their  own  actions;  renouncing  their  allegiance 
and  electing  to  be   aliens.     What   is  done  by  treaty  i.s 
juridice  J<(<tiiin  :  >^y)  noii   !(i.-iiira  j>opiiJi :  but  altlidugh 
the  King  never  could,  ;ind  cannot  now,  disfranchise  any 
subject,  y{}\  his  (><>urts  of  justice  could,  at  comnum  law, 
disfranchi.se  and  outlaw  his  subjects  on  propi-i-  process 
issuing   upon  the  delimjuencies  of  the  oHending  p.irties. 


i 


t)F    THE    LAW    OF    NATIOXS. 


681 


In  the  same  manner,  wi\en  the  Kinf,'  e\-ecntes  the  frreni 
trust  of  making  treaties  of  peace,  wherein-  i)roviiiees  are 
ceded,  and  the  provincials,  though  unoflending  sul.jertH, 
are  disfranchised, the  law  will  justify  and  warmnt  what 
it  empowers  ;:..  !  eir  iMes  the  executive  authoiity  to  per- 
form and  enforc.  •  anri  a  disfninchisemeiit  performed  in 
this  manner  hv  the  Kings  negociidors,  is  ns  niuch  done 
by  the  law  of  tli^  land,  as  au  oiitluwiy  pr..noiiMce<l  by 
the  king's  judges,  iu  the  court  of  king's  bench  :  eou  > 
tn(/o  re^ni  ArujltT  <^t  Lex  AmjUr. 

Mr.  Professor  W'oodeson  indeed  in''.rnis  us,  that  when 
by  a  treaty,  especially  if  ratified  :,,  .,.t  of  parliament, 
our  sovereign  cedes  any  ishuid  or  region  to  another  state' 
the  inhabitants  of  such  ceded  territory,  though  bta-n  un-. 
der  the  allegiance  of  the  king,  or  Ociug  under  his  pro-' 
fiction  while  it  appertained  to  his  (;rown  nnd  authority, 
became  ellectually  aliens,  or  liable  to  the  disabilities  of 
alienage,  in  respect  to  their  future  concerns  with  this 
country  ;  and  similar  to  this  seems  the  condition  of  the 
revoltc'd  Americans  since  the  recognition  of  their  inde- 
pendent commonwealth  *. 

Now  let  us  listen  t<>  Mr.  I'rofes.sor  Blackstone,  who 
says  that  "Natural  allegiance  is  a  debt  of  gratitude, 
v.hich  cannot  oe  forfeited,  cancelled,  or  altered,  by  any 
chance  of  time,  place,  or  circumstonce,  nor  by  any  thing, 
but  the  united  concurrence  of  the  Legislature  r'  *  vet 
Profes.sor  Blackstone  had  already  well  argued  the  kiiig's 

•  Wood  .son's  Vin.  Lectures,!  38-2.  This  Inw  h..  boon  collected 
into  Bacon's  Abr.  1708,  i.  |-«.».  I  have  arpieil  the  .several  Point.s  npou 
con.mon  bw  principles.  To  introduce  the  ratification  of  pa.liamer.t  ia 
to  weaken,  rather  than  strengthen,  the  argument,  from  these  rrii.eiples  • 
If  parliament  decide,  it  is  decided;  no  one  .,gucs  with  the  nuini^.-ionce 
ot  parliameut  j  ei  one  contends  witli  the  omnipotence  of  parliament  I 

•  1  Blacks.  369. 

87 


682 


OPINIONS    OP    EMINENT    LAWYERS. 


¥        > 


constitutional   authority  to  make  war  and  peace,   from 
the  law  of  nature,  from  tho  law  of  nations,  from  the  law 
of  England  :  the  Professor   thrrofore    wrote  contradic- 
torily, Avithout    knowing  this   unhicky   cinMmistance. — 
His  general  position  is  sound  law  :  thai  natural  allegiance 
is  such  a  debt  from  the  subject,  that  it  cannot  be  altered 
or  cancelled  by  the  act  of  the  party    himself  oven  with 
the  concurrent  help  of  any  prince  or  ])i)tentate  or  pnw- 
er  :  it  must  be  relinquished  by  some   act  of  law,   wliidi 
amounts  to  the  assent   of  the    king  and    nation,    and  a 
solemn  treaty  is  that  nece.ssary  act;  l)iit  the   cnnchision 
of  Blackstone's  position  is  not  law,   as  he  words    it,  yet 
may  it  be  made  law,    by  adopting  the    emphatii'ai    lan- 
guage of  the  great  charter  :  no  freeman  shall  f)e  di'stroy. 
ed  or  disfranchisei',  but  by  the  lawful  judgment   of  his 
peers,   or  by    the    law  of  the    land,    whicli  is  tho  safest 
lanrruage,   on  occasion,  of  this  .sort,  as    tiH>   law  will  at- 
tach according  to  the  necessity  and   nature  of  the   case 
before  it. 

Let  us  now  hear  what  the  judges  sai.l  in  CjilviuV 
case;*  "  so,  albeit  the  kingdoms  of  Knglin.l  and  Scot- 
land should,  by  descent,  be  divide.]  and  gov,.,-,!.,!  by 
several  1-ngs,  yet  was  it  re.solved,  that  all  thos,.  that 
were  born  imder  one  natural  ol>edien(  .>,  v,lii!-  the  realms 
were  united  under  one  sover-ign,  should  remain  ,iatnial- 
born  subjects,  and  no  .aliens;  f,,-  that  naluiali/.ilion, 
due  and  vested  by  birthright,  cannot,  by  any  separation 
nf  the  crowns,    afterward  l,e    taken   away,   nnp  be  that 


7  Co.  27  b.     C; 


■  'KG  It  report  of  ('i,,viii's  ens,,  wn^i  rr[.riiil<Hl  h\  Jntiir> 
\^  atflon,  at  Eclinburgh,  ill  IIO.".  when  parii.  ^  ran  hitrli,  at  •!:•  Mi,i„M, 
.'  for  the  inforinatiou  v{  such  n.s  rr,,,,!.!  know  ilie  rights  and  privilc^;. -  of 
Rro.'^moi.  rr.i.iing  in  England,  and  of  Kiipli.,|,nirn  omuu  g  i,,  t^cotlnml  " 
I  liavi  iu  my  library  a  copy  of  tbia  rcpriutcd  nport. 


OF    THE    LAW    or    NATIONS. 


683 


was  by  judgment  of  law,  a  natural  subject  at  the  time 
of  his  birth,  become  an  alien  by  such  a  matter  ex  post 
fact) ;  and  in  that  case  our  po  tnuiiis  may  bo  ad Jidcn 
uti-'iu^que  m//>,  as  Bractoii  .saith. 

Tliis  re.s(jhition  is  supposed,  and  said,  to  be  decisive  of 
the  case  now  in  (piestion,  like  other  decided  cases;  but 
this  resolve  was  not  the  point  before  the  court,  which 
was  that  of  one  Colvil,  or  Calvin,  as  he  is  called,  Avho 
had  been  born  in  Scotland,  after  the  accession  of  King 
James  to  the  throne  of  England,  and  brought  an  actio. i 
lor  tlie  recovery  of  a  house  and  tenement  in  London:  it 
was  ph'a(k([  in  l)ar  of  his  action,  that  he  was  a  Scots- 
man who  was  l)orn  out  of  the  allegiance  ef  the  King, 
and  when  the  court  decided,  that  being  born  after  the 
accession  of  the  King,  Calvin  was  a  subject,  and  not  an 
nlieii.  tiic  ca-ic  wa-i  decided  in  his  favor,  and  of  course 
tiie  resolutitiii  of  ilie  Judges  on  a  sui)posed  contingenc}', 
as  beforemeutioned.  was  a  mere  extra-judicial  opinion, 
which  is  no  authority  at  all,  whatever  there  may  be  in 
tlie  arunniient. 

Let  u>  MOW  ;ittciii]  to  the  Lord  chancellor  Egerton, 
when  giving  his  judgment  in  this  very  cft«e  of  Calvin  : 
••  U  hcicfoiT  of  the  many  and  divers  distinctions,  divi- 
sion-, and  subdivisions,  that  have  ber  ii  made  in  this 
case,  I  will  >a^\  no  more,  but  coii/iiMuin  e^/i/!ii(ijni(/ in  piil- 
r6rcvi  fectiimc  /,  ami  will  conclude  will;  bisiiopJuel.a  man 
may  w.iinler  and  mi>s  lii>  way  in  the  mists  of  distinc- 
tions. *  A^  the  kilii:',  nor  his  lieart,  cannot  be  di\  i.led, 
for  ho  is  one  entire  King  over  all  \\\<  sulijects,  jn  wlii(di 
.sn(<v(-r  of  bis  kinudomsor  douiinions  he  were  l)i)rn,  so  ho 
iiiiL-t  not  be    served,  nor    obeyed,    ly    halves:  he   must 

*  Ilia  published  spoocb,  C2,  102. 


684 


OPINIONS    OF    EMINENT    LAWYERS. 


'ii 


'M 


lirvo  entire  and  perfect  obedience  of  his  subjects;  for 
Ay/;///  (as  Haion  Heron  said  ^v•ll)  niust  l.ave  four 
qualities:  1.  /'„;,,  d- sin^r  .■ ;  2.  ///A.-ym  c(-  w//V/a  ;  3. 
I  lu'v  'w^/,';.s>  null  loffii;.^ :  4.  PrrmaniM  crmiiniia,  d- 
illc'^.t.  Divide  :i  man's  heart,  and  you  lose  Ijoth  parts 
of  It  and  nmke  no  heart  at  all,  so  he  that  is  not  an  en- 
fre  sub.icct,  but  half-taced,  i.s  no  «ul)ject  at  all."  Apply 
Ous  solid  sense  to  the  condition  of  the  American  citizens, 
afti'r  their  ulle.^'ianc^•  was  renounced  hy  the  kin^''s 
aeknowledjjrment  of  the  soverei-rnty  «)f  the  United 
States,  and  the  subjeetlon  of  their  citizens  was  also  dis- 
owned  by  Mie  kind's  solenni  act,  under  a  constitutional 
tru-^t  ;  yes,  say  some,  the  United  States  are  sovereign 
ami  independent,  the  American   citizens  owe  no  allegi- 

''"' '■  ^nl.jc-;tion,  yet  do  they  claim   their  birthrights. 

The  proper  answer  to  such  pretensions  is,  ;,ou  have  lo.st 
your  i)irthrl  iits  by  yoiu-  own  acts,  and  tiie  operation  of 
law  upon  your  several  acts;  (,l,  <i.^^„:tl<:  noh  .v/7  injuria. 
\\  lieu  llie  king,  acting  in  [(in'suauce  of  a  solemn  trust 
d-rived  from  the  constitution,  renounced  all  (daim  of 
government  over  vou,  and  of  course  rtdeased  vour  sub- 
jection, the  king  theril.y  signified  the  assent  of  the  na- 
tion tb. it  \  (mi  >hiinld  bono  longer  subjects  liut  aliens  ; 
for  iiMuakiuu;  e\eiy  treaty  the  king,  as  trustee  for  the 
nation,  biiid-<  the  nation  by  his  diplomatic  acts,  and 
l(X  nil  jkIkI  f runt  I'd. 

Who  sees  not,  t  hit  the  bird  ebaii-ellt.r.  in  wb.at  be 
paid  abrn-e,  glance.!  at  tiie  e\tra-ju(b<ual  resolution  and 
illogical  reasoningof  the  judges  bet))re  mentioned  '  What 
sort  of  logic  w.is  it  to  rea><on  in  a  circle  \  It  never  was 
a  principle  of  tiie  law  of  Kngland  that  subjects  could 
be  111  fiflan  utvin-tque  regif,  as  v  e  have  already  seen  in 
tiiu  learned  Craij^'s  discussions.  If  never  \\:,s  a  princi- 
ple of  the    law  of  nature,    as  we    may    karn    from   our 


OF    THE    LAW    OP    NATIONS. 


685 


saviour's  declaration,  tha:i.Th  tlir 


re  inif^ht  bo  exceptions 


to  the  L^eneral  rule,  under  special   privilego,  as  the   Ivirl 
inarsl.iil,  who  was    mentioned    by   Bracton;  so,  in    the 
treaty  or  I'treelit,  article  21,  the  French    k 
tocaiHojiKti'.'e    to  be  done    to  the    fainilv  of  JL 
conoernin-  the  dnk^'dom    of  Chatelheraidt,  and   to  tl 
Dnke  of  Ki(dnnond  cone 


eiifrnged 
unilton 


le 


to  make,  and  to  Charles  I)ou<d 


erninj^  snch  retpiests  as  lie  had 


to  be    cl 


limed  I)y  him,  and  so  of  otl 


iiss  conrernin!;  some  lands 


lers. 


the  Dnke  of  Ilainilt 


Tl 


HIS    miirht 


on,  and  the  Dnke  of  RiehuKmd,  and 


the  Duke  of  Queensbcrrv.  owe  a  donl)le  all 


tl 


IIS  e\ 


xception  only  proves  the  f^'eneral   principle. 


e;,'iar;ce ;  but 


Well,  but.  says  Sir  Kdward  Cok 


e,  naturalization, due  by 


eaimot,    f)y  any    sc^paration   of  th 


e    crowns. 


birthriirjit, 

afterward  be  taken  away;  yet    how  was  it   before   and 

after    the    treaty  of  Northamptn,,,  VVlX,   „f  which 

sc^ms  to  iiav..  been  but  lamelv  i.uformed  ?     1 


Kdward 


the  21st    (.1-  Ivluard    I.    MacdnH',  a  Scot' 


n 


n,i;;ainst    a    jiulL'-nient   of 


man,   appealed 


Kd 


lis  sovereii:ii,    .b,hn     Haliol     to 


ward,  as  his  superior  lonl.  and  the    Kii,-r  ..f  Kn-'land 


received  tl: 
when  the 


c  appeal  and  caused  justi((>   t 


>  be  done 


)ut 


ov(>rei!.riitv  of  Kn'dand  w 


tre!it\-,  the  lioniaLie  i^\'  tli 


!is  renounced  b\-  that 


•ottish  kini 


dctermini'd  and  tl 


and 


people  was 


icy  oeeaine  aliens,  t   and  theicj 


such 


ore   no 


'!"';d  or  sell  can    b(>  shewn  in  auv    record  nnd 


the  (r.Mly  of  N. 
to  I'lii^laiid,  as  I 


rtli  inipton,  a~   Scutl.iii'l 


nth  lien 


er 
\vas  now  alien 


John    lo.s!  the    N 


already  s||,.\\ ,,  ;   v;,,  aftci-  Kin.r 


irman    pro^  inces,    the  two 


w'uU  their  people,  became   aliens  to  earh   otl 
bui'i  already  shown,    and  as    Bracton  tells 


iNinudoni«, 


icr,  as 


hath 


Tl 


lose   two 


,^ 


•  Riloy's  riacita,  15.',  107. 
t   Molluy,   375. 


G86 


OPINIONS    OF    EMINENT    LAWYERS. 


^reat  prorciKMils  I'ldiii  well   voucIumI  liiston  and  record 
clearly  ])]\n\'  that  a  natural   subject.  In-  birthiiiilit,  may 
becoiiK-  alitMi    b\   such    matter,    c.r /:o.'<(  f,fi fo.    and    tliu.'i 
d'l;  li  Sir  Kdward  Cuke  fail   in  hi.s    ar-umcnt.      Tlieu,  a.s 
to  the  general    resululion  ol' the    juducs,  not   ui)on    the 
case  referred  to  them,    but  upon  a  case  which  niijiht  by 
possibility  happen,  in  the  jiroi^'css   of  time  and  chance: 
A\  hat  i-  it  biii  .1  wu'vr  /ufitio  priitci/iii,  bcm;in<jf  the  very 
question    w  liidi    ou-ht    to    be   answered  I    How  does  it 
stand  with  \\\>'  lundauicntal  piinciple  ef  the  fc:u/i/' law, 
■which  i-;  (|'i  lied  byCraii:-,  the    profmnid    i'eudist,  iiini.sd 
idtan  iliio:inn   (Inm  ninnii  Iiodi  >  rn'iii-s'    i-s\i'   no/i   j>ofslj' 
How  dees  it  con-i-t    with  the  law   ol"  naturt',   us  (piutcd 
by  Kur    Sa\     nr,  n  )  man  can  s(m\('    two  masters,    for  he 
willhate    tlienn^and    Iom-    llie  other.'      How    di)es    it 
quadiale  with    the    jreneral  law,  as    to    alieiia'/e  of  the 
European  nation^  .'      D.th   it    not  t"ar    up  by  the    roots 
the  ehiefgroiniil  ;  of   ail  iho-e  l.iw>,   in  rt'speet  to  alien- 
age .'      Doth  it  n-t  pretend   to    out-aruue    the   liistoiical 
facts  whii'li  iiive    been  (pinted  as  to  the  loss  of  the    l']n- 
glish  iliminion,  in    Scotland,    and    in     France  !      Ma-iii 
do  it,  (jiii  pnit/,  lit  )•  h<t<iio(jat,  .said  the  Lord  chancellor 
Egertcn. 

Lord  Mansfield,  indeed,  in  deli  liiej:  the  ()|iiniiin  of 
tlie  Iving'.i  Ik'HcIi  in  the  C{i.«o  of  the  kir  •;  .a'^aiusi  Cowl,'", 
with  legnrd  to  tlielo;,;al  .state  <if  r)."\\  i.!^,  wiiethri  with- 
in ilie  iiirisdic'tion  of  that  court,  and  reprobatiiiL;  some 
o'itrnju'n/ni'i  in  the  case  of  Calvin,  remarked  of  sir 
EJward  t'oke,  "  that  he  was  very  loud  oi  lualtiplyiiiL; 
proecdents  and  iuithoritie>>,  and  in  order  to  illnstiatc  his 
subject,  was  apt,  l)e?«idc'.s  such  authorities  as  were  strict- 
ly applicable,  to  cito  otlicr  oases  .uiiii  h  wei{>  not  appiic- 
ablo  to  the  particular  question  under  his  consiticration." 


OP    THE    LAWS    OP    XaTION! 


cs: 


After  nil  those  consideration*,  o.ui  it  l,e  d^Militofl  ^vith- 
in  Westininster-liall  or  without,  uht-tl 
giinl  theni.seives  as  at  all  hound  h 
Mansfield,  in  deli 


Jn  the  case  of  the  kii 
takes  of  very  _<j,re:it    1 
Lordship,  that  Cok 
"  that  HL-rw 
land  ;   for  i" 


(■!•  tiie  judges  re- 

nianilest  error  "{   Lord 

iverin^'  the  opinion  ol'thc  Kin-'s  hench 


ipiinsl  Cowh'.  recfilied  t 


wo  niis- 


iwver: 


It 


i-    niai;ii,^t.    >aid   I 


lis 


e  Js    mistaken    in 


^i.Nii.ir,    li'iierallv 


ick  was  not    ■rovcrned  l.y  the  1 
criminal  matters  th; 


iws    o 


1"  !•: 


O'l  i-;    uiidouhtcdly 
lerwise-    and,   his    Lordship    a.Med,    (he  Lord    Ciilef 


otl 


.fiisti<-e  Hah'  iselearlv  iiilstak 


wick  sen 


ds  memhcrs  to  t 


ken  m    sa\iiii:-.  -(hat    ]}er- 


charter  ;''  for  it  is  l.v 


II'    paihaniviif    of  Iv,._rl 


Mid    l)v 


tiiem  thither. 


wri(    of  siMinii'iis  l|,;,(     fli,,v  ^^.^j 


w 


111  cnnseipuMU'e  (if  thcii   hci,,- a   hjjon-h. 


e  mi'v  thus    jjerceivc  lha(    t 


greatest  lawyers  cannot  alwa\s  h,-  ;,ual. 


10    \  i^ilanee  of  excn    the 


Ke  ;  a 


of  nn 


11"  miniis 


n.  according  to  .lohnson" 


stantlv  atleutivc  1 


filial  k,    car.iKt  he  con- 


I  exanesceiil  a<i 


Wil 


Kiir- 


W 


ii.im  151ack>t(,in..    (liat 


lie  (old  l)v 


cnliinies  to  (he  kiiuv  an 
seems  to  ha\ 


■III  ■•ippoal    \ir>    from    the 


il  cnuncli 


r 


unmj'ntator 


Matth 


'■   iHTfiucd    this  form    of  w-.rds    from    Sir 


lew  JIah"  s  ili-1,,1  \  of  (i„>( 


names  and  hi':h  ant 


"nilin.il    l.;i\\   ;    1)1 


It  ^reai 


i'\  of  lanu-iiaLic  and  of  1 


i-'iily  niniKii  jii>tii;\    >u(di  in  ;ccura- 


i\v 


'I'l 


ic  appeal 


III 


liis  couiicih      Mr  M  ittiiew     Hale    IkkI      lid      tl 


tile      I 


(inali/.a(ion  can  oiih    he  \>\ 
wi>c.  t      Nat  lira  li/at 


l\inir 


lai    iia- 


iih.iinent,   i   )d    not    other 


ion.  saiih  Blackstone 


formed  hu( 


1».\  act  of  parliament,  copx 


III  :'  .  I  l:  a 


thew  Hale     ihotiuh    without 


'I  Im'  pcr- 
iiiSir  .Mat- 


iisiiii;-  his  idl 


ti.id  no'    itherwiM  ;   hut    such  -.■neial 

•  Cniiltiinit.  IJtl,  edit.  1,    108. 
t  Vent.  K,.p.  4l'.t  -'0.     Thut  pnsitioii  of  II  ,1,. 
neiisc,  but  ia  not  true  in  a  Rmoral  scniie. 


e     e\|)ii'ssioi] 


positions    cannot 


loio,  111  .1  I  .nrtinula 


G88 


OPINIONS    OP    E^^NE^•T   LAWYEKS. 


stand  acraiust  known  facts,  as  well  as  juridical  polifcy  ; 
and  it  was  ovo;  ruled  by  the  court  of  kin-:;'.s  bench  in  the 
case  of  Campbell  and  Hall,  while  the  policy  of  consider- 
ing aliens,  conquered  in  war,  and  ceded  by  treaty,  as 
subi'ects,  was  confirmed  as  law.  The  whole  observatioiis 
of  Sir  Edward  Coke,  in  support  or  explanation  of  the 
hypothetical  resolution  of  the  judges  l)ef()re-mentioned, 
may  be  considered  as  mere  mistakes,  and  extra-judicial 
inferences,  leading  to  little  information  and  to  mischiev- 
ous consequences.  We  all  know  the  fatal  eflects  of 
double  allegiance  during  the  latter  periods  of  our  do- 
mestic history. "^  "Indeed,"  saiHi  Blackstone,  t  "the 
natural-born  subject  of  one  prince,  to  whom  he  owes  al- 
legiance, may  be  entangled  by  subjecting  himself  a])so- 
lutely  to  another:  but  it  is  his  own  act  that  brings  hiir- 
self  into  those  difficulties  of  owingservice  to  two  masters  • 
and  it  is  unreasi)nal)]c  tli;it  by  such  vohnitarv  act  of  his 
own,  he  slinnld  be  able  at  pleasure  to  unloose  those 
bands  by  which  h(>  was  connected  to  hisnntural  prince.'' 
But  I  have  done.  I  have  shown,  satisfactorilv,  I 
trust,  in  wbiit  manner  millions  of  sulijects  may  become 
aliens,  by  mere  act  and  operation  of  law,  as  millions  of 
aliens,  Iiy  the  same  operation  of  l;i\v,  may  become  sul> 
jects. 

Fchi-'inrij.  1,  1811.  (;.  (j. 


(1.)  'J'he  opinion  nf  Sir  Lhv/,l  Koii/on,  in  1TS.3,  o/? 
t'le  ijia-itioii,  ic/ut/ur  the  (jtOih  iuipninl  t'r<'m  tlf  I'nit  il 
Stittea  musit  pay  nlim  r/v.' V.v,  and  arc  ^iihjtd  tj  the  regu- 
liUijH'i  of  the  ats  ')/'  luivitjalion. 

•  See  Foster's  Crowu  Law;  184,  >to. 
f  Comment.  1,  370. 


OF    THE    LAW    OF    NATIONS. 


689 


Case  for  the  opinion  of  Mr.  Kenyon,  states,  stat.  12 


Ch.  II.  ch.  18 


sec.  6. 


8,  9. 


(^,nrre.~The  United  States  of  A 


morica,  havinir  now 


iintations 


become  independent  of  this  reahn,  -nd  their  pi 

and   territories  in  America  not   now   deemed   as  to  his 

Ma.jesty   l)el 

lieople  thereof 


onguig,  are   not  the  <,^oods  i-  -ported  hv  the 


ered  as  <roo(] 


in  shi[)s  to  them  helon-rinjr,  to  b 


s  imported  from  anv 


with  this   kin-idom,   ))v  tl 


c  consid- 


<)rei<ni  st.des  in  amitv 


their  country  ;  and  such  of  tl 


10   jjcople    thereof   in  ships  of 


lem  as  are  enumerated  i 


the  Sth  section  preceding,  liable  to  the  aliens'   dutv  im- 
posed by  the  Hth  section'/ 

Q>/ure  2.--Are  sucfi  goods  hel.l  to  be  .•ibsolutely  pro- 


liibited  to  1 
(1 


't'  imp  iti'd,  under  the  pain  ol"  forfeiture.  1 


le   said    Oil  sr.'linn  of 


ands,  if  this   . cct 


ly 
law  .'      For  ;is  ihi-    case  now 


ion  is  to   \<v:if  that 


other-,  aiK 


1  it. 


cou.lruetion,    the 


■cein  irreconcilabh 


X.  /;.— Tl 


lese  .pie.dions  are  i»ut,  merely  to  know  1 


llif  law    stands  upon  llif-<'  (  lau>es,  witi 
to  any  onicM-s  of  coinicil 
llic    tra'lc    ai}il  .ouiiiicrce  of    Noiili  Ai 
art  ol'  llh>  la-( 


low 


liat    ma\-  c    i,.:(, 


loiii  iiin    reuMi'd 


le    ii'h.tive  t( 


ifnca  uudi^r 


lie 


s'^y/.  ;;'».  its: 


M'^siou  ,,|    parliaiufiil  'Jil  (leo.  111.  ch.  20 


i    tiiiiik    that    the  \ 


nv  I'ouvtriii'tiuii  of  the  act 


IIUHtaUCC-:    II 


as  cir- 


ow  staufl.  is.  that  li'  loii      (I 


I'liitcd    States.  I 


K'    pldllllic  of  (lie 


nay  lie  iiiiportod    into  this  count 


the    plac'  of  their  growth,    iiji  u 
j)aya!)le  by  lbreign<'r--.  ai;<l  iiiioi 


f\-  liom 


1    ll.i\  llirlit   of    the  (hit 


les 


C7u«tn;  (hi.  11,  1 


1  no  III  lirr  lerms. 


lb.,. 


la..  K 


i:\yo\. 


88 


690 


OPINIONS    OF    EMINENT    LAWYERS. 


(2.)  Tht  opinion  of  Sir  William  Wrjnne,  in  which  tKe 
Attm-ney,  and  SJicitor-Genvral,  Ardtn  (vul  Macdonald, 
concurred,  on  the  filatc  of  American  ohips,  afUr  the  inde- 
pendence of  the  United  States  *. 

I  do  not  think,  that  since  the  ratification  of  tlie  trea 
ty  of  peace,  by  which  the  United  States  of  America  are 
declared  to  he  free,  sovereign,  and  independent  states, 
and  his  Majesty,  for  himself,  l>i.s  heirs,  and  successors, 
relinquished  all  claims  to  the  government,  pro])riety,  and 
territorial  rights  of  the  same,  a  register  could  be  legally 
granted  to  any  vessel  belonging  to  tht  subjects  of  the 
said  States,  because  such  vessel  could  not  be  said  to  be- 
long to  any  colony  or  plantation  to  his  Majesty  belong- 
ing, or  in  his  possession,  or  to  be  wliolly  owned  by  the 
people  of  the  said  colonies  or  plantations,  or  an_y  of  tiicm, 
as  required  by  statute  7  and  8  William  III.  cli.  22  ;  nor 
could  it,  I  think,  be  truly  sworn,  that  no  foreigner  had 
any  part,  share,  or  interest  in  the  said  vessel,  as  subjects 
of  the  United  States  must,  I  conceive,  Ije  considered  as 
foreigners,  within  the  intent  and  meaning  of  the  .said 
statute  of  King  William,  frona  the  time  that  liis  Majesty 
relinquished  his  claim  to  the  government  of  the  said 
states.  I  think  that  vcs.sels  which  were  built  in  any  of 
the  British  colonies  of  America  before  the  conunence- 
of  the  late  war  there,  and  wliicli  are  /'oim  fuli  the  i)rop- 
erty  of  British  subjects,  are  without  (loul)t  ((ualified  to 
obtain  registers;  but  I  do  not  see  how  sucli  vessels  its 
were  purcha.sed  by  British  subjects  in  aii\  of  the  states 
which   were  declared  independent   li\    the  late   trenty, 

•  I  was  assured  by  tbo  hitc  Sir.  riiomiis  HDinu',  tin-  rliriirninn  o!'  tlii? 
board  of  customs,  tbat  tbe  Attorney  iiml  Snlidtor  (Miicral  IkmI  (niicunod 
with  Sir  William  Wynne. 


OF    THE    LAW    OP    NATIONS. 


691 


since  the  beginning  of  the  year  1776,  can  be  legally  reg- 
i.stereiUs  IJiiti.sh  ships;  a.«,    from  the  beginning  of  iI>q 
year  1770  to  the  conclusion  of  the  war,  all  trade  a..(l  in- 
tercourse with  the  revolted  colonies  was  prohibited  ay 
tlie  loth  George  the  Third,  ch.  5;  and  consequently  the 
purchase  of  a  ship  in  any  of  those  colonies  during  that 
porio.l  by  a  Bntl.h  subjec'      ast,  I  conceive,  be  deemea 
il.egal  and  void;  and  a  si.   ,  built  in  any  of  the  said 
states  since  the  ratification  of  t'-e  treaty  nu.st,  I  appre- 
hend, for  the  reasons  before  given,  be  deemed  a  foreign- 
budt  ship.     Secondly,  I  think  it  is  advisable  for  the  of- 
ficers of  the  customs  lo  seize  and  prosecute  vessels,  the 
property  of  subjccl.  ol  the  United  States  of  America,  or 
which  were  built   and  purchased  by  British  subjects  in 
any  of  tli.-  -;,i,!  states  since  the  beginning  of  the  year 
1770,  though   ivuistcrs  have  been  granted  for  them,  if 
they  are  found  trading  to.  or  from,  or  in,  any  British' i.s- 
l'".d.,r  plantMti,.n,or  to  any  part  of  this  kingdom,  or  oth- 
er  his  M;ijes(y's  dominions. 

N.B.  A  v-ss,.]  huilt  in  the  American  states  during  the 
rebellion,  and  before  the  independence,  being  sworn  to 
be  the  property  of  his  Majesty's  sub;..cts  residing  in  Ire- 
Innd.  the  nilir  ms  .,f  Indand  have  lately  granted  her  a 
register;  but  i,p.,n  lier  arrival  in  England,  on  a  vovago 
IVnni  the  IJriti-l,  West  Indies  with  good...  the  pro'duce 
thcreuf.  si,,,  was  seize!  1,..,.,..  and  is  claime.l  in  the  ex- 
'■'"■'i"'i';  ••"id  an  ap|,!ieation  fn,-  il„.  delivery  is  now  de- 
|"'i!'liug  before  (h,.  I,, ids  (if  the  treasiu-v. 

W.  Wynne. 

("..)    7/i>i  o>>i„!nn  nf  th"   Altontnr'Uncral   Anhu,  l,i 
li>>S,  nil  fJi,    Anil  rii'i  ,1  timJc, 

Abnut  tiiree  nmntlis  a-na  brig  cleared  out  of  the  port 


692 


OPINIONS    OF    EMINENT    LAWYERS. 


I- 


1 


I 


a 


•  ■S 


of  Kiiigsiou,  in  ballast,  for  Hispaniola,  from  thence  to 
proceed  to  New  York  :  .she  accordingly  proceeded  to 
Hispaniola,  and  as  she  was  designed  for  New  Yoik,  the 
supercargo  on  board  her  ordered  the  cai)Uiin  to  stop  a£ 
Tnrk's  Island  and  take  in  some  salt,  thiidving  it  was  al- 
.  lowable,  as  many  vessels  had  done,  and  are  still  doiii^ 
the  same.  She  accordingly  proceeded  to  New  York 
•with  the  salt  on  board  as  ballast,  where  she  landed  it, 
and  took  in  a  cargo  of  flour  for  Turk's  Island,  and  hav- 
ing landed  it  there,  proceeded  fo  Cape  Francois,  where 
she  took  in  mill  tin'bers,  Hnd  arrived  at  the  jwrt  of 
Kingstc     on  Wednesday  the  2Sth  instant. 

The  ollicers  of  the  customs  having  had  intimation  of 
the  above  circumstances,  sei/od  her,  irlleging  that  Ihe 
above  vessel  had  committed  a  breach  of  the  navigation- 
act.  Your  opinion  is  therelbre  re([uested  on  the  [)art  of 
the  owners,  whether  or  not,  ii-.im  the  above  circumstan- 
ces, the  said  vessel  is  forfeited  and  liable  to  seizure  ?  I 
think  this  a  h.a-d  cas-e  upon  the  owners;  but  I  am  of 
opinion,  no  trade  can  be  conducted  between  the  United 
States  of  America  and  the  West  India  Islands,  anM)ugst 
which  the  IJahania  Islands  are  included,  except  as  to 
such  articles  as  are  expressly  nxMiti-jnci!  in  the  Kin<r's 
late  proclamation,  and  to  those  onh  :  I  think  the  vessel 
is  liable  to  be  seized. 

P.  Akukv. 

(4.)    P/'-~  •ff.9-S'h}».s>  oil  the  qn-xfton,  '•  ,i'Jirth<  r  iiilml-ltitnts' 
of   the  I  iiiUd   Slufcs,  Imh-h  III.  re  liijore  ihi:   iiu/i p()i(/' iivi' 
are,  on  <.ojnin</  t  >  thi^)  kiiiiji/oDi,  t't  he  <vih\i(li/'i(/  tn  inituv- 
al-honi  suljjed-^f^^     Jiij  a  Ban  inter. 
Deveml'er  0,  ISOS. 

1   thought    the  atlirmative  of  this  question  was   ac- 


OP    THE    LAW    OF    NATIONS. 


693 


kn..wlodjre(l  by  all  lawyers.     One  authority,  it  .seems  to 
iiu",  is  snilicient  to  support  it;  1  mean,  what  is  laid  down 
in  (;alvin'.s   case,  on  the  supposition  that   the   crown  of 
Scotland  mifrht  possi})iy  he  separated  from  that  of  Eng- 
land :  up(»n  which  point  the  jud<,^es  resolved,  "That  all 
those  who  were  horn  under  one  natural  obedience,  while 
the  realms  were  united  under  one  sovereifxn,  should  re- 
main natural-born  subjects,  and  no  al-c    ^ ;  for  that  nat- 
uralization, due  and  vested  l)y  birthrights  cannot,  by  any 
separation  ol'  the  crowns  afterwards,  be  taken  awav;  nor 
he  that  was  by  jud-ment  of  law  a  natural  subject'at  the 
time  of  his  birth,    become   an  alien  by  such    matter,  ex 
po.st  fado,  and  in  that  case,  upo.i  such  an  ac<i,l..nt,  !,ur 
aNt.  m,fu.suu\y    ].^  ad  Ji<hn>   »tri».sq„e  /rv//.v,-   (TKep. 
•11.  I..). -r,  to  apply  the  words  to  the  present 'ca.se,  our  .////o' 
»uf,is-.  or  American  born  before  the   sei-aration,  may  be 
ii'l  flJnn  rrr,;..,  and  also  a  citizen  of  the  United  States*. 
Su.'b  a.  plain  and  explicit   authority  as  this   seems  to 
Diake   if  unne-es,.ary  to  search  for  an'v  other;   however 
-.b,ivcli<M,s  are  raised  to  the  elain,  of  micI,  persons  to  be' 
considered  as  Hritish-borji  subjects. 

1st.  It  is  .,b.iected  that,  admittin-  the  common  law  to 
1k^  as  laid  down  in  the  above  resolution,  there  are  cir- 
'umstance.  in  the  .Vmerican  rcvoluti.m  that  di.stimruish 
it  from  nil  .ul.er  cliaii-e'^  of  soverei-ntv.  The  island  of 
•'^'imica,  .s.y  th..y,  n>ay  be  ce.lcd  by  the  kin-  and  this 
I'.'iii-  done  without  the  consent  .,f  the  iidiabitants.  (here 
\<nn  reason  why  they  shrndd  lose  their  bir(bri..i.(  of 
Hritish  subjects:  but  the  Americans,  a  whole  people  in 
arms,    <Iaimed  to  be  released  from  the  Eno-li.h   -overn- 

•  T''«  7«-^'  "«<'«  'I'ero,  that  Ls,  one  born  .-.ft.r  tl,e  unin,,  ^vi,h  Scot- 
land, correspond.,  witl.  the  ante  natus  hero,  that  is,  one  boru  L.forc  tho 
^I'l'uratKin  trcmi  Aui<  rica. 


694 


OPINIONS    OF    EMINENT    L.       VERS. 


mont,iind  tlie  kiiigat  the  peace  consented  to  give  up  his 
autliority  :  ho>v  caii  such  a  people  be  afterwards  consid- 
ered as  British  suhj(!cts  ! 

2dly.  It  is  objected  that  there  are  certain  statutes 
and  public  acts  which  stand  in  the  way  of  the  above 
mentioned  common  law  principle  taking  effect. 

3dly.  It  is  even  objecttxl  by  some,  that  no  principle 
of  the  conunon  law  can  sujiport  so  unwarrantiible  an  an- 
omaly as  that  the  same  pei-sons  should  belong  to  two 
states,  and  that  admitting  them  to  levy  war  against  the 
king  in  the  character  of  American  subjects,  without  be- 
ing deemed  tiaitors,  and  then  allowing  them  to  come  in- 
to his  kingdom  in  the  character  of  British  suljects,  is 
an  inconsistency  which  they  think  cannot  be  counten- 
anced bv  the  law  of  England. 

To  the  first  of  these  (jl)jections  it  may  I)e  answered, 
that  the  i)cace  which  put  an  end  to  the  American  war 
ought  to  be  considered  as  putting  an  end  to  all  the  ecu- 
sequences  tliat  might  be  imputed  to  the  Americans  by 
reason  of  their  rclu'liidn  ;  and,  indeed,  there  is  in  the 
delhiitive  treaty,  article  G,  an  evpress  provision,  that  no 
person  should,  nu  account  of  the  war.  suffer  anv  future 
loss  or  damage,  either  iii  ids  per.-<ou,  liberty  or  proper- 
ty- 

Further,  we  should  in.juin'  what  the  Amei'icans  could 
be  sujjpost'd  to  relin(inish  by  making  war.  and  what  was 
the  result  ol  the  king  making  pence  \  The  .VmericaiH 
could  not  me;in  to  ri'woiuice  the  pri\  ileges  ol'  British 
suiijects;  because  they  rebelK'd  and  made  war  in  order 
to  get  somethin  •  they  had  not,  and  not  to  surrender 
what  they  posse- cd  ;  jt  was  to  release  ihemselves  from 
their  allegiance;  but  no  man  can  throw  olT  his  allegiance 


OP    THE    LAW    OF    NATIONS. 


695 


at  his  own  option,  as  must  bo  admitted  by  every  one. 
Did  the  king,  then,  make  peace  with  them,  in  order  to 
take  away  their  rights  as  Briti.sli  .subjects  I  But,  sure- 
ly, it  is  wer  known  that  the  k.ug  ah)ne  cannot  take 
away  tliC  rights  of  a  British  subject  from  any  one.  In 
the  peace,  therefore,  made  with  the  Americans,  there 
seems  f  .  have  been  no  legal  competency  in  the  contract- 
ing parties  to  pro.luce  the  eftlrt  uppo.^ed,  of  making  the 
Americans  aliens.  This  must  appear  even  upon  gener- 
al principles  only  ;  it  will  presently  l,e  shewn  that  there 
was  not,  de  facto,  any  thing  in  the  trcity  upon  the  sub- 
ject ::  British  rights,  that  warrants  the  supposition  of 
their  being  taken  away  from  the  Americans. 

There  cannot,  in  a  judicial  point  of  view,  be  any  dif- 
ference between  the  suppos- dca.se  of  cession  of  territory 
without  consent  of  the  inhabitants,  and  the  present  case 
of  cession  to  gratify  the  wishes  of  the  inhabitants.     The 
allegiance  in  botii  cases  is  of  the  .same  nature  ;  the  alle- 
giance is  not  to  the  ,<oil,  but  to  the  person  of  ti,.    King; 
and  as   no  transfer  or   cession   of  tlie   soil   to  a  foreign 
prince  makes  any  alteration   in  the  allegiance  of  birtli- 
rightoftl  .   subject,   but  the  .sauie  still   remains  in  th 
person  of  the  subject,  it  imports   nothing  Avhether  sac 
cession  is  made  with  or  without  Lis  consent.     Inbotl, 
cases  he  becomes  a  British-born  subject',  living  in  a  for- 
eign land,  and  liable  to  the   alteration  of  circumstances 
which  every  where  attends  a  British  sn  ject  when  out 
of  the  king's  dominions. 

That  going  ou^  of  the  king's  dominions  under  the 
charge  of  criminality,  at  the  choice  of  thopartv  and  by 
the  kiug-s  o.nsent.  d.u.s  not  make  a  Briti.sh  .subject  an 
alien,  is  evinced  from  tlie  old  law  of  .sanctuarv,  in  ca.sos 
"•'  fi'lony  and  abjuring  the  realm  to  save  the  felon's  life. 


I 


>?■ 


4 


OOfl 


OriMONS    OI'    EMINENT    T.AWVEns. 


It  is  expressly  laid  down,  "Quiil  ahjiinifrr-ijimm,  ,imit,'lt 
raunum,  ml  iion  ir^on  ;  (niniitit pnti  iam.  s.il  iion  ptitirm 
jhi'i'K,  :  i;.r  iDtwithstaiiding  the  itl»jiirat ion,  lio  owctli 
the  kmu;  his  aiU -i'Micc,  and  he  remain'^tli  \silliin  tlie 
lvin-"s  protection:  (or  the  kinu'  may  jtardon  and  restore 
liini  to  hiseomitry  a.i^ain.  Allegiance  is  a  <pialil\  .if  tlio 
mind,  and  not  confined  to  anv  place."    (( 'al\  in  s  case  li,| 

As   lo  wjiat   i-^  now   .^.aid.  of  the  Aniciicans   hcin-  .^ 
whole  pcoj>le   in  arnis  (lrii,aiidin,-r    to    he   released    liuin 
their  adeoiaiMe.  it    shoid  I    he    recoil.., .fed  tiiat    tiic  inii- 
.i^ua.uc  ill  this  coinitry  diiriiiL;  the  wjiolc  oltlie  Aiiicriciii 
wai  wa^diU'cn.nt:    it  was  said,   '■  the  liiinkin-  part.  I  hos,. 
wlh,   liad  propel  fv  and  character."    and  son,..  sai(L   ■■  tli,. 
niajordv     ,.f    tl,,.    propl,-."     \v,.re    a-ain^t     the     vio|,.nt 
inr.aMires   wiiicji  w.t,     .hivcii   on  ly   an    ■m-\\\\'  iniiri'il  .• 
"''  •'i.^itators.      Is   it  til,.,,  al    all  reaM.iiahIc  to  inl-r   iipMU 
those    prrson.s  who  Were    lii,.|idl\-    to   ihi^    coinitrv.    the 
consecpieiK'e-;  ,  f  Miel,  re-i^fance  and  reh.-llioii  '      !ii.l,.,,l 
fiiere  i>  nothiiiL-'  so  nnju-t   in    the  law  o|'  I'aiuhoid.       ,  he 
!:nv  does  iiot  c  aisidei-  the  i  ■  ■;.•<    siihieel..  in  ;,   ,,, ,.,.,<.  ,,,,- 
der  the  iianK-  ..filie  ]  ..o^ile.  in  aii\    imiiili.'r  im  re  or  h'<s*r 
Thoy  .amiot  !.,•  con-idered  in  a  legal  view,   hut  a-  indi- 
\idn:i:~      what    i^-tlie    law    respect  ing  one,    isth-lawic- 
Hpectingono  iiiiilioii.aiid  ev..|\   man-  caM>taii.|-    upon 
it«  own  gn.nnd   au.l  <  ii-um^t.mre.       ji  i-,  tii,.|,rni..   ut- 
lerlv  inconsistent  wi''-   the  law,  to  im|nih.  to  the  .\inpr- 
icans  any  (lisCraiichi-einent  a.'  a  people      ii    there  in  nny 
snc!\   oxtingni^liiiieiit  of  ri-ht^-.  it  niiivt  he  in  <oino  "    ij. 
vidiml;  and  if  il  i-^  ni't  o.  he  discuvLreo    n  one   it  i<      )t 
h>  he  loiiiiii  ill  a   millioii. 

Secondly,  n.s  to  the  statutes  and  nnh'ie  nets  win.  h  ar.. 
supposed   tostiMid  in    the   ^\ay  of  the  ah  ..,■   iiientH.ncd 


OF    THE    r,AW    OF    X ATIOXS. 


697 


principle  of  common  law:  the  principal  statute  which,  I 
boliovo,is  leiiod  upon,  is  statute  22  Geo.  III.  c.  4G.  This 
i^  a  parlianu-ntary  authority,  enablincr  his  Majesty  to 
maive  peace  with  America;  an  authority  which  had  be- 
come nec'ssary.  because  tlie  parliament  had  passed  some 
acts  of  pn.hibition  ai.d  pon.V.ty  which  might  stand  in 
the  wa.v  orpca<H..  as  stat.  iC  vieo.  III.  c.  o.  and  stat.  17. 
<.oo.  111.  e.  7/  for  proliibiting  trade  and  intercourse 
wtii  Amnrica  and  for  authorising  hostilities  against  the 
rebels.  The  Au.e.lcan  war  having  thu.-.  become  a  par- 
liamentary mens-  ro.  it  re.p.ired  the  concurrence  of  par- 
'lahient  to  n.ak.  ,oe,  which  in  ordinary  cases  belongs 
to  the  king  aloi  .-.  ° 

Ac.unliugiy,  stat.  22  (I  1 1 1.  c.  40.  authorises  the 
king  t..  nairlude  -,  Ik-;  ...  or  truce  with  the  said  colo- 
nies ,„•  plantations,  or  -..uy  ol  them;'  an.l  that  the  above 
"'<-"J""'^''l  prohibitory  acts  might  not  be  an  impediment 
to  the  progress  of  negociation,  the  stat.ite  authorizes  .he 
king  "  by  k-tt,Ts  pat.'ut,  under  the  great  ,.eal,  to  rej.erl, 
'"imd.  and  mak.'  xnid.  ..r  sn  ,-..„d  the  ojeration  or  efle-.t 
-fauya.i.or  a.is  ..I  Ma!lian...|K.  uhieh  relate  to  the  said 
'■ol.'uics  ,r  plantations:  meaning  under  thcso  general 
wonis  n.o.st  prohably,  the  above  mentioned  prohibit^r- 
a.i'^,  anil  non;-  other. 

'i'licn-  nnght  be  auotiier  rea.son  for  an  net  of  p.a.-na. 
"•'■Ill-  iiani.-lv.  .Mune  hi'si(ati..n  as  to  the  persons  with 
uh..m  the  kings  connniv.ioners  w.mh'  to  treat,  whctner 
tiie_\  li:i.l  .•oinp.-len<'\  t  h.  )vf..ri',  tin  a.t  speaks  of  trP".t- 
ing  «  ith  .•.Muini-iuner..  nani.Ml  l,y  th.-  cohmies,  with  any 
body  or  bodies  polit,,-,  uiil,  ai.v  assembly  or  n.^senddien, 
or  <leseription  of  men,  .,r  wub  inv  peiso,,  c-  persons 
uhatsoever. 

•  Tlusfl  arU  were  alu-rw   rd.^  r.-p.^olo(l  l.y  mm    *.>3  'Ivo.  TTT.  o.  2o. 


i^ 


I   > 


i  .; 


I'    i 


608 


OPINIONS    OF    EMINENT    LAWYERS. 


Sucli  .ire  the  provisions  of  the  .act  for  inakinj;  peace 
with  America,  which  is  supposed  to  ^ive  authority  to 
the  kiii.o-  to  ttike  away  the  rights  of  JJritish-horn  sub- 
jects from  the  inhal)itants  of  the  United  Stati-s,  and  make 
them  ahens.  I  can  only  ask  those  who  aUege  this  act, 
to  shew  us  hy  what  wort's,  or  hy  wliat  constnu-tiou  of 
words,  such  power  is  given  to,  or  \y  intimated  to  reside 
in  the  king'/  And  with  such  an  appeal  1  dismiss  this 
statute. 

The  next  document  that  occurs,  in  course  of  time,  is 
the  defniitive  treaty  made  in  SeptemScr,    178:5,  in   pur- 
suance of  such   parliamentary   authority.     In   the  Hrst 
article  of  this  treaty,  the  king  '■  acknowledges  the  Uni- 
ted States  (naming  the  several  colonies)  to  he  free,  .sov- 
ereign,  and    independent    states;    and    for    himself,    his 
heirs,  and  sut>cessors,  relin(iuishes  all  claims  to  the  gov- 
ernment,   pro[)riety.   and    territorial  rights  of  the  same, 
and  every  part  thereof''     This  leading  and  genend  pro- 
vision being   made,  there   follow  in  the  treaty  .some  few 
subsidiary  stipulations,  all  tending  to   give  effect  to  the 
above   rclin<piish,neiit   of  sovereignty,  and  to    the   con- 
(ir-uati-.u   of  peace   an. I  amity.      After   reading  tlie.se,  I 
nuist  again  ask  the  lil-r  (juestion  as  before,  where  is  the 
pro\i>iou  in  the  treaty  for   doing  that  which  I  liave  not 
yei  di>cover(>i|  the  K  ing  w.i- authori-rd  b\  the  act  to  do.' 
It    iipi.e.ars    fr,.in    rea.lmg  the  treat;.  .    llialthe    king  has 
not,  -/,   jurfo   dnne  that    which   he  was  n^t    enabird    bv 
(he   act,   nor  was  otherwise    autliui  iM'd,  ,/,    /,//•,,    |,.,|o, 
lie  ha-  not    taken  awa\    the  riLdits   of   Iblt  ish-l.ni  ii  siij,- 
jecta  residing  in  lb.'  Iinled  States,  nur  Ji;,s  he  n'u.Mnire,! 
Ill  ',allei:i,inee  of  his  natural-born  snbjeetfl  residing  there; 
h.'  has   acknow  i.MJiTii  the  eofaiies  ii>  be  free   and    indo- 
|iendent,and  r.  lincpiislud  all  sovereignty  over  their  ter- 


OF    THE    LAW    OF    NATIONS. 


699 


ritory;  in  doinrr  so,   ho  has  dopartod   with  some  of  his 
(nvn  royal  prero^rative,  and  has  circuinscrihod  the  claims 
hr  L.'toro  had  on  tho  allo<,naiice  of  his  nntural-lmrn  sub- 
jects  resi.iin-  thoiv.     This  was  his  to  give,  aiid  ho  has 
,^iven  It,  l.ut  tho  ri-hts  of  British  suhjocts  tho  kin^^  had 
no  power  to  take  awny  ;  nor  was  it  a  time  for  talking, 
hnta   ti-.no   for  trivin-  and  conceding;  the  Americans 
meant   to   add    t„   what   they  already  enjoyed.     They 
would  have  felt  it  an   injury,  if  it  had  he-n  ])n.posed  to 
them  no  longer  to  he  deen.e.l  iiritish-born  subjects;  and 
re<.>llecting,  as  we  must,  the  feeling  and  speculati.ms  in 
this  country,  looking  forward,  as  many  ,iid,   to  the  colo- 
nists .,uarrclling  amongst   themselves  and  coming  back, 
all  "I-  some  of  them,  to  their  old  connection  with  us,  we 
"li.y  b.-   sue  no  one  in  this   kingdom    wonl.l    have  ven- 
fiire.i       ,   propose    that   they  .sboul.l   be  stripped   of  tiie 
••haracter  of  British  subjects  to   which  th.-y   were  born, 
;"•''  '"'  'vudered  aliens  mi.ler  circumstanccs'which  Would 
iii-ii'-Mte  on  o,n-  part  a  dispo.siti.m  t<.  perpetual  estrauije- 
ment  ami  entuitv. 

So  far  from  this.  1  think,  ther>  is  even  in  the  treat v 
n.  expn-ss  saving  ..f  the  rights  of  a  l^ritish-born  sub- 
•!'■'■'•  """""-  """'••  '-i-'l't^  and  claims.  I,,  article  (I  it  i.s 
pnuided,  •■(bat  no  p<,s,,n  shall  on  that  a.vount,  (mean- 
in-  the  pn>c..,|ii,..-  w.ir)  suUer  any  future  1o-h  or  damage, 
'•i'!"'-  ill  |H'i>'m.  l,b..,ty.orpr.,p..,(y,-'      J.'  ,.,„  Am.'ricnu' 

''" -^  ('""iskiu-domaud   i~  (reate.l    as  an  ,ili..n   uu.l,.r 

the  ali.-n  act,  b,.  a-madlv  sulb-r-  in  hi-^  person  au.i 
'''"■'■'>  •""'  ^"'•''  -'dV-iing  nuHt  be  ou  account  of  the 
":i'.  wb.,b  tho>,.  ou.uiit  to  allow  who  make  the  lirst  of 
!l.e  above  obj,M-tious  he  -undy  <v,nnut  be  .said  I.,  ufier 
b\  the  i-eace.  which  was  meant  for  conferring  advantages, 
Mot  Ibr  taking  .'leiu  away. 


•    }  I 


700 


OPINIONS    OF    EMINENT    LAWYERS. 


"ifm 


The  next  (locument,  Avhoro  wo  are  to  look    for   soine- 
thin-;  which  i.s    to    coiitn.l   tlio    ohovo   princii.le   of  tlu. 
coinimm  law,  is  tlie  coinni-jrcial  treaty,  l!)th  of  Novem- 
ber, 17V)4.     But  in  tlr>   1  can   iln.l  nothing  to  the  eflect 
siipposucl,  and  1  must  put  the  like  interrogation  as  before  ; 
jet  with  still  less  expeetation  of  an   answer,  heeause,  in' 
this  treaty,    we    have    something   more  than    negative 
eviden.-e    we  hive    here    express    testimony,    that    the 
rifehtsof  British-horn  suhjeets  were  intended  to  he  con- 
tinued to  the  Ainerieans  hy   the  lirst    treaty,  and  that  it 
was  intended  hy  the   eoiumenial  treaty  to    give  them  a 
longer  continuanee  to  their  posterity.  By  the  t)th  artiele 
it  appears  that  the    American  citizens  then    held    lands 
in  the    domini')ns  of  ..is    Majesty;   l.nt   they    nnnt    ho 
Briti.sh-born  suhjeets    to  hold  laiids,  and    not  aliens.     It 
appears,  therefore,  that  his  Majesty,  in  Novemher.  17!)}, 
eleven  years  after  the    treaty  of  peace,  re.-og„ized    tiie 
citizens  of  the  Tnited  States  as  British-h;.rn  sui)ject^.- 
I  lay  this  stress  upon  the  declaration  (.f  the  fict,  heeause 
I  cannot    suppose  u  puhlic    and   M;h mn    instrument,  as 
this  treaty  is,  would  speak  of  jjuids  lu-ing  h.-lden  in  anv 
other  sense  than  that  of  hein^  lawfully  holdeii. 

Theframersof  the  treaty  eertainiy  undeiNtood  it  in 
that  sense,  heeause  the  |ao\i>inn  tiiey  liiiend.'d  to  make 
was  to  fortily  the  lilies  to  tl,e-e  lan.is  in  future  times, 
when  eertainiy  the  title  to  tluui  would  l„.,'om,  n<.t  law- 
ful. They  foresaw  that  although  the  ,  .vsen!  |„.s.,.s,.„s 
were  British-horn  suhjeets,  I  heii- de>r,ndeiits,  Im!iii  in  (1,,. 
Umted  States,  oul  of  the  king's  allegiance,  would  h,; 
aliens.*  It  was  acc,udingl\  sti|.uia'e.l,  •  that  iieitiier 
they  nor  their  heirs  or  as.sigus  >hall.so  tar  a,  nnv  respect 

•   TIkj  might  for  their  sons,  awl  pr.-jndRotis,  hnvo  tlio  boncfit  of  8t..t. 
7    Ann.  f.  ,v  ..tat.  i  (Jeo.  11.  c.  Jl.  iui.J  stat.  |;l  (Jco.  IL    c.  21.  lutl'or 
atcr  UcsucnUcuU,  tliojr  uecUcU  a  ucw  jiruvision. 


OP    THE    LAW    OK    NATIONS. 


roi 


the  said  lands,  and  tl.o  legal  remedies  incident  thereto 
be  regarded  as  aliens."  If  it  nhuuld  be  objected,  that  the 
I)tov,,;,o,i  here  speaks  as  well  of  the  present  p,.sse.ssor  as 
the  heirs,  the  answer  is,  that  it  would  not  have  been  so 
v/ell  worded  if  the  present  possessor  had  not  been  named  • 
and  .i-he  had  not  been  named  as  well  as  the  heirs,  it 
might  have  been  construed  into  an  implication  that  he 
was  to  be  excluded  from  the  pn^tection  intended  for  the 
heirs  only. 

Another  more  probable  rea.son  Ibr  this  stipulation  was 
to  bind  the  two  nutions,  not  to  make  anv  disqualifying 
law,  that  by  rendering  the  others  aliens,  would  .Usable 
them  Irom  holding  lands.  This  future  po.ssibilitv,  with- 
out any  doubt  about  the  then  present  state  of  the  law, 
iiught  be  sullicient   reason  for  such  a  cautionary  provis' 

Whatever  oI)servation  may  he  '  idulged  on  this  part 
of  tile  arucle,  (he  averment  in  the  beginning  of  it  re- 
mains unnnecled;  .mi.I  .his  averment,  of  Americans  be- 
ing Bntish-born  subjects,  is  ngain  published,  ratified, 
and  confirmed  l)y  parliament,  in  stat.  37  Geo.  III.  c.  97.' 
sect.  21,  'lo.  whicli  was  made  for  carrving  into  execu^ 
tion  the  treaty.  Tliis  article  of  the  treatv  is  there  re- 
cited at  h"ngth,aiid  th..  two  clauses,  .-vet.  21.  and  25. 
purport  ■<)  cany  it  into  execution. 

If  their  is  any  tbiiig  in  n.  -.(atute  to  control  the  ef- 
fect of  Wwr.  muoii  law  position  ..,,  uftm  allu.h-d  to,  I 
think  it  shouhl  he  iu  th.M>  (wo  chin.«,.s;  yet  I  have  not 
been  able  U>  discover  such  ;i  meaning,  and  1  must  leave 
it  to  be  demonstrated  by  (hose  who  have  found  it  out. 
The  clauses  Mppenr  to  me  to  have  something  |.atticuiar 
in  th.  m;  they  oni,(  the  naming  of  heirs,  which  was  the 
oiuctmentmost  wanted,  and  they   supply   this  omission 


Si 


^^     i 


^"'^IRi; 


702 


OPINIONS    OF    EMINENT    LAWYERS. 


by  a  windiiiir  wordiness  in  tlie  proviso,  that  is  not  easily 
evolved.  There  i<  a  <rrud,<;iiifi  caution  in  the  win  tie  con- 
ception of  these  ehvus(\s  :  1  believe  the  framers  of  them 
did  not  like  the  matter  of  them,  being  unwilling  to  bear 
thi.s  parliamentaw  testimony  to  the  legal  conclusion, 
that  ante  ixifi  Americans  are  British-born  subiects,so  as 
to  hold  lands. 

As  to  the  thinl  objection,  the  anomaly  and  inconsist- 
ency of  Aineric-ans  being  citizens  of  the  United  States 
while  tiiei'e.  ;iiid  being  Britisii-boi-n  subjects  wlnnhere; 
this  is  not  a  novelty,  nor  is  it  peculiar  to  Americans  It 
may  happen  to  any  Hritisii  subject,  and  it  is  allowable 
in  our  law.  wliich  recognizes  this  double  character  of  a 
per.son  bein--,  as  was  ])efbre  shewn,  a,/  fidnn.  i/friiisqNC 
m//.s'*.  Ib-itisji  >ul))ects  may  voluntarily  put  them^ 
.selve-;  in  ><nch  a  situation  ;  it  -s  part  of  tii"  privileges  of 
a  JJritlsh  siil.jeet  to  be  at  libeity  ^^o  to  do.  Have  we  not 
British  subjects  who  ;ire  natural.  ■.,[  in  Holland,  in  Rus- 
sia, in  llambuiirli.  in  various  j.laces  on  the  continent  of 
Europ"  ?  Do  not  Ihitish  suojects  become  citizens  of 
the  United  Stat(>s  /  Some  persons  are  born  to  such 
double  ciiaraetei  :  ciiildrcii  and  grandehildre;',  born  of 
Briti-^h  |i:irent<  in  lbiciui,  coinitrli's,  are  British-born 
sulijects,  yet  thcM'.  no  doubt,  by  the  hiws  of  the  res[)ect- 
ive  foreign  counMii's  an>  also  deemed  natural-l)orn  sub- 
jects till  ;•('. 

'J'hus  far  of  individuals;  fh,.  like  may  happen  to  a 
whole  conuuunity,  whole  p,.o|,|r  When  the  king  rc- 
liiKpii-bed  In-  so\ci-ei-nty  o\-er  (be  liiited  Malfv  the 
laud  lierai.ie  foreign,  while  (he  inlialutants  remained  all 
British  Hubject.s.     When  the  king  s  furces  took  Surinam 

•  Vid.  nut   pa.  G93. 


OF    THE    LAW    OI     NATION; 


and  the  other  Dutch  cuh 
but  the  inhabitants  still 
sonal  character  of  al 


mies,  the  land  1 
continueil  fore 


703 

)ecame  British, 


i":ii'^r.s. 


Tl 


ic 


were  born,  still  remains  to  tl 


per- 
ion    with  which  the  Dutch  coloniyts 


acter  of  British  subject,  with  which  the  A 


ni.and  the  indelible  en 


Ijorn,   remained  to   them  after   tl 
foreign. 
I 


ar- 


niericans  were 


leir  counti'v  was   made 


la) 


am  aware  of  the  difficulties  which  suci 


)or  under,  with  those  double  cl 


them,     Such  difhcult 


stances  will  allow,   and 


les  must  be  got  (hnuio-l 


1  persons  may 

anus  of  allegiance  upon 

I  as  r'rcum- 


th( 


C(»nsi(ierati(ju 


parties  according  to  their  respect 


Kiiild  he  had    f 


)r 


especially  with  a  distinction  bet 


ivc  situations;  more 


themselves  into  such  oml 
and   those  wl 


wee 


n  tl 


lose  w  ho  itrouuht 


)arrassing  situation  voluntarily. 


with  regard  to  the  dill 


lo  were  horn    in  it:  and  i 


iioie    particularly 


erence  between  (hat  which  is  tl 


actof])rivate  individuals,  and  that   whicl 
proceeding,  involving  a  whoh 


le 


circumstan 


1" 


opie 


jections   which  relat 


'H's,    it  will  soon  appear  that  tl 


I  is  a  national 
In  Wl  luhio"  such 


ies(>  are  all  oh- 


the  case,   they  are 
crcise  and  enjoyment  of  th'>  ri-ht.- 
ut  nothing   from'the  ri-dits    fli 


e  more  to   lacts  than  to   the  1 
inconveniences  in  tju-  w;i\  of  | 


i\v  of 


nil  e\-- 


Ir; 


ill  <pie>tion.  liut  de- 


hand,  th 


ems.jves.     On  the  one 


iig  c:.iniot  lecjvo,,  upon  tj,,.  fnll  and  absolute 


olx'dl 


ence   of  such  persons,   1 
fealty    besides  that  due  to  1 


tecause    tl 


ic\   owe 


anotl 


ur 


iiin 


ai  tl 


c  oihci-  hand,   (lie 


M'b)ect  cannot  have  full  enjoyment  of  his  Hnlish  riuht.^ 
Indeed,  it  will  ho  found,  he  will  1 
lights  as  the  king  has  of  his  (.hed 


lave  a^ 


iitti 


.11, 


is  own 


ol  a 


Briti 


lence 


di  subject  are 


if  the  riirhts 


exa 


Iuo^t  all  ol'  them  depend 
Miinons.  and  that  when  1 


mined,  it  will  appear  lliat  at- 
'>n  a  nvsideiice  in  the  kinii's  do- 


ll N,   as   thev 


e  remo\e>  inio  a  foreii'ii  c 


oun- 


are    without  e\erci 


se   or 


I'lication,  they 


•  >.>-l     .1UV»     11,1V 


V  no  apparent  existence, 


fl 


-M  I 


1 


Ifl' 


704 


OPINIONS    OP    EMINENT    LAWYERS. 


M 


I  hav )  heard  it  asked,  if  the  king  was  to  send  his  writ 
to  command  the  attendance  of  Mr.  Jeflerson  in  thi.s  king- 
dom ?— I  agree  he  \vould  not  come;  bnt  that  woidd  he 
no  test  of  the  law  upon  the  subject;  it  i.s  an  inconven^ 
ience  in  point  of  fact.  The  law,  in  the  execution  of  it, 
is  liable  to  many  obstructions  which  prevail,  and  yet  the 
judgment  of  law  is  not  deemed  thereby  invalidated.  If 
the  king  had  sent  such  a  writ  to  General  Washington, 
at  the  head  of  his  army,  I  suppose  he  would  a  .t  have 
obeyed  it,  yet  no  one  would  have  deemed  it  a  demon- 
stration that  he  was  not  amenable  to  om-  law:  Why 
then  shculd  a  pacific  refusal  from  Mr.  Jefferson  have  in 
it  more  of  the  force  of  a  legnl  argument  1  And  yd,  I 
think,  Mr.  Jefferson  might  decline  obedience  to  such  a 
command,  admit  himself  to  be  a  British  subject,  and 
have  the  law  on  ids  side  too. 

Mr.  Jefferson  might  answer  such  o  call  upon  him  by 
saying,  true  it  is,  I  was  born  a  British  subject,  and  1  my- 
self have  done  nothing  to  put  off  that  character.  }k\t 
your  Majesty  has,  by  the  treaty  of  1783,  relinquished 
nil  sovereignty  over  the  United  States ;  and  as  your 
Majesty  and  all  the  world  know,  it  w.is  thereby  intend- 
ed that  your  subjects  here  should  form  a  government  of 
their  own  ;  we  have  so  done,  i.ador  the  faith  of  your 
Majesty  s  grant  and  covenant;  iuid  it  has  happened  in 
the  progress  of  events  that  1  am  now  exercising  an  of- 
fice in  that  government  which  necessarily  requires  my 
presence  hc.o.  I  am  bronglit  into  this  situation  in  Con- 
sequence of  an  act  of  your  Majesty,  by  which  it  was  de- 
signed that  my.self,  or  some  other  of  your  subjects  here, 
should  come  into  such  a  situation  ;  being  so  circum- 
stanced, I  am  no  hmgcr  at  liberty  to  make  a  choice  of 
my  own      There  is  a  moral  and  pcJitical  necessitv,  that 


OF    THE    LAVv    OP    NATIONS. 


706 


makes  it  impossible,  at  present,  to  obey  the  commands 
of  your  xMajesty  ;  I  pray  your  Majesty's  forbearance;  1 
plead  your  Majesty's  own  covenant  and  good  faith:  and 
I  rely  upon  them  as  a  justiiication,  or  excuse,  for  my  dis- 
obedience. 

Surely  this  would  be  a  good  plea  in  point  of  law,  and 
Mr.  Jefferson  might  have  the  beneht  of  his  American 
citizenship,  in  perfect  compatibility  with  the  claims  up^ 
on  him  from  British  allegiance.  Such  scintilla  juris  in 
the  king  of  England,  ean,  I  should  think,  raise  no  tlame 
in  any  Aineiioun  bosom. 

There  are  much  stronger  ca.ses  of  a  similar  kind  that 
have  never  startled  any  one  with  their  anomaly  or  in- 
compatibility.    Mr.  J.  and  other  American  citizens  have 
entei-ed  into  their  olfices,   tiieir  engagements,   and  their 
situations,   under   the  laith  of  the  king  and  the  parlia- 
ment.    But  how  many  British  subjects  have  become  cit- 
izens, burghers,  burgomasters,  and  have  taken  other  of- 
fices in  foreign  countries,  voluntarily,  upon  speculations 
of  private  interest,  and  fiom  various  inducements,  all  of 
them  of  an  individual  and  personal  nature.     If  such  per- 
sons had  b6en  called  upon  by  the  king's  writ,  they  would 
not  have  had  so  good  a  plea  as  Mr.  J.  and  yet,  probably, 
none  of  them  would   have  moved  from   their  station! 
Was  it  ever  heard  that  such  persons,  when   returned  to 
this  kingdcmi,  were  deemed  to  be  less  of  British  subjects, 
because   they  had  lived   and  risen  to   public  stations   in 
foreign  states  \     No,   certainly,    they  are   considered  as 
having  exercised  the  liberty  belonging  to  all  British  sub- 
jects, respecting  whom  there  is  no  restraint  but  the  con- 
siderations of  prudence  whicli  are  suggested  by  the  oc- 
casion ;  and  yet  none  of  these  volunteers  in  foreign  ser- 
vice have  so  nuicii  to  say  for  themselves  as  an  Anrericau 


X 

i: 


If 

I 


.  Ml 


706 


OPINIONS    OF    EMINENT    LAWYERS. 


citizen  who  chooses  to  leave  the  United  States  and    „ 
spend  the  remainder  of  his  days  in  this  kingdom.     The 
loc.J  allegiance  he  has  acknowledged  to  a  foreign  gov- 
eiii.ic      is  recognized  by  the  king  and  parliament :  he 
:  ■■-    -••.  :  jr  lived  wholly  out  of  the  view  of  the  sovereign 
power  under  which  he  was  born;  and  the  language,  law, 
and  manners  he  has  been  conversant  with   during  the 
whole  of  his  residence  in  the   ceded  states  of  America, 
restore  hiin  to  '\r<,  kingdom,  and  to  his  original  and  nat- 
ural  allegiance,   unchanged,   and   quite   British.     Why 
should  a  person  of  this  descriptiem,  an  American  citizen, 
be  the   only  one  rejected  and  excluded  from   the  rights 
of  a  British  subject,  because  he  owes  a  local  allegiance 
in  another  country  7 

There  is  a  parliamentary  record,  testifying  instances 
of  such  contumacy.  In  stat.  14  i:  15  Henry  VIII.  c.  4. 
it  is  recited,  that  Englishmen  living  beyond  sea,  and  be- 
coming subjects  to  foreign  princes  and  lords,  "  will  obey 
to  none  autlun-ity  under  the  great  seal  of  England;  but 
they  give  themselves  over  to  the  protection  and  defence 
of  those  outward  princes  to  whom  they  lie  sworn  sub- 
jects.' It  is  herein  recorded  by  parliament  that  Eng- 
lishmen thus  expatriated  themselves  and  refuse!  obedi- 
ence to  the  kings  writ;  and  yet  no  declaration  or  enact- 
ment was  made  by  parliament  on  that  point  of  disobedi- 
ence, so  as  to  disfranchise  them,  and  make  tlien\  aliens; 
but  there  is  by  that  act  imposed  on  them  merely  a  pen- 
alty in  one  particular  article,  that  of  importation  of  goods. 
Such  persons,  it  seems,  had  abused  their  privilege  as 
Englishmen,  and  had  lent  their  name  to  cover  the  goods 
of  persons  of  the  foreign  country  where  they  ri'-ided. 
To  put  an  end  to  such  impohitioris,  they  were  in  future 
to  pay  alien  duties,  as  the  subjects  of  the  country  where 
they  resided. 


OF   THE    LAW    OF    NATION'S. 


roi 


Compare  these  recusant  absentees  alluded  to  in  the 
statute,  with  the  American  now  in  question.     The  torm- 
er  voluntarily  leave  the  kingdom,  make  themselves  sub- 
jects  of  a  ioreign  state,   refuse  obedience  to  the   king's 
writ,  abuse  their  privilege  of  natural-born  subjects  lo  de- 
fraud the  revenue.     The  latter  i.s  })orn   under  the  king's 
allegiance,  in  a  country  which  the  king  has  since  ceded 
and  made  a  foreign  land.     It  does  not  appear,   this  par- 
ticular person  had  any  concern  in   the  public  aftairs  of 
the  country,   till  it  was  so  settled  by  his  Majesty's  sol- 
emn covenant  and  grant.     He  chooses  in  the  latter  part 
of  his  life  "  to  go  home,'  (for  such  is  the  phrase  in  the 
United  States  to  the  present  momenl,)  and  end  hisdovs 
here.     No  act  of  recusancy  or  contumacy  is  imputed  to 
hiui. 

Now  compare  the  consequences  in  the  two  cases:  the 
former,  though  solemnly  noticed  and  censured  by  parlia- 
ment, is  not  marked  by  any  penalty  of  disfranchisement, 
thougli  thus  iilienated  from  his  native  country,  but  is 
merely  mulct  in  the  payment  of  alien  duties;  the  latter 
is  toUl  he  is  an  alien  and  has  lost  his  right  of  a  natural- 
born  suliject. 

The  fiu-ther  we  go,  the  le  we  find  of  precedent  and 
principle  .'gainst  such  a  sei.ience  of  disfranchisement. 

'Ihe.se  iire  the  answers  which,  I  think,  may  be  made 
tt)  the  al);ive  three  objections  ,  These  answers  seem 
to  me  sullicicut,  and  nothing  further  need  be  d<me  but 
to  come  round  to  the  place  fnmi  whence  we  set  out, 
namely,  the  position  of  law  resolved  by  all  the  judges  in 

•  I  recollect  another  objection  :  how  in  the  question  of  American  citi-  '• 
zeij.s  to  Le  tried  ?     I  .see  this  wa.s  an  u'njection  in  Cahin's  ease :   it  is  the 
second  of  the  five  inconveniencies,  aud  it  is  answered  ia  the  Report,  fol. 
20,  b. 


M 


'  i 


708 


OPINIONS    PP    EMINENT    LAWYERS. 


Calvin's   case,   according  to  which   the  anie  nafi  in  the 
United  States  continue  still  British-born,  subjects,  and, 
comin.q  here,  are  entitled  to  all  the  privileges  of  such. 
The  plain  and  explicit  principle  laid  down  on  that  occa- 
sion, has,   I  suppo.se,   governed   the   minds     f  lawyers, 
whenever  they  have  been  consulted  on  the  aijplication 
of  it  to  American  citizens.     It  is  owing,  no  doubt,  to 
this  uniformity  of  opinion,  that  the  question  has  never 
been   brought  to  argument  in   any  court.     During  the 
space  of  2-j  years,  .since   the   independence  of  America 
was  declared,  there  has  aever  been  so  much  doubt  on 
this  claim  as  for  any  lawyer  to  advise  a  contest  by  suit. 
I  deem  this  want  of  judicial  determination,  coupled  with 
what  follows,  to  be  a  great  testimony  for  the  affirmative 
of  the  question. 

In  the  mean   time  lawyer.;  have  been   oc  ,'ulted,   no 
doubt,  very  fretpiently,   and  wr''     n  opinions  are  in  the 
pos.session  of  many.     I  liave  been  able  to  obtnir.  a  .sight 
only  of  two.     I  have  seen  an  opinion  of  Mr.  I-.enyou,  in 
1784,   where  ho  declares  in  few  words  and  without  hes- 
itation or  qualification,  tliat  American  citizens  may  hold 
lands  us  British-born  subjects.     I  Imve  seen  an  opinion 
of  the  attorney-general  Macdonald,  in    Feb.  1789,  that 
engaging  American  seamen  for  foreign  service  should  bj 
prosecuted  as  the  oftence  of  enticing  British  seni.ien  i>  tc 
a  foreign  service  :   the  prosecution  was  commenced,  the 
indictment  found,  I)iit  tlie  attoiney-g(>neral  entered   a 
noli  prosequi  upon  the  party  paving  the  costs. 

Among  tlie  opinions  of  lawyers.  I  nnist  menti  'i  what 

.1  received  from  Mr.  ,  to  whom  I   .s^nt  a  -  'ate- 

ment  of  the  ca.se,  with  the  view  of  learning  wliethcr  any 
alteration  had  taken  place  in  the  opinions  of  lawyers  of 
late  days :    I  knew  I  should  have  from  him  the  current 


OP    THE    LAW    OF    NATIONS. 


709 


opinion  rr  Westminster-hall ;  he  at  once  wrote  with  pen- 
cil on  the  hack  of  the  paper,  that  such  persons  are  Brit- 
ish subjp-^t  ,med  to  answer  it  as  if  it  was  as  known 
anu  as  -^(abh^ied  as  that  ihe  eldest  son  is  the  heir  in 
fee  simp'  . 

I   rr.,,.  i,v  at  the  Custom-house,  where,  .  was 

told,  I    a.frh'  nossibiy  find  notes  of  some  decisions  at  ni- 
^'iprau     ■      :^e  Exchequer,  which  conveyed   the  chief 
baron  s  oi>inion,  that  a  domiciliation   in   America  took 
away  the  British  character  from  a  seaman  employed  in 
navigating  a  British  ship.     The  solicitor  said  he  knew 
of  no  such  cases  nor  of  such  opinion  ;  on  the   contrary 
he  said,  It  was  the  usage  of  the  Custom-l,ouse  to  consii^ 
or  the  ^rnfe  nati,  in  America  as  British-born  subjects  and 
hey  wore  registered  as  owners  of  British  ships:  he  in- 
fonnod   nic   also  of  the  above  proseccutiou   for  enticin. 
British  scamoir  and  he  gave  me  copies  of  the  paper.    ° 
These  authorities  from   the   opinions  of  lawvers  and 
he  practice  of  a  public  office,  cannot   be  closed   better 
than  by  a„  authority  superior  to  all  of  them  ;  I  „,can 
what  has  been  already  mentioned,  the  9th  article  of  the 
treaty  of  commerce,  and   sect.   24.  and  2-3    of  stat     37 
Geo^ni.  c.  97    where  there  is  a  solemn  declaration  by 
he  king  and  the  parliament,  that  American  citizens  did 
hen  hold  lands;  which  they  could  not  lawfulh-  do  -m 
loss  they  were  deemed  British  natural-born  .,  bjec^i  ^ 

Aher  such  authorities,  there  does  not  .seem  to  me  any 
need  to  add  a  word  more. 
iMc.  9,  1808. 

,..  .  Brccmher  35,  1808 

.Since   writing  the  above,   I  have  been  told  that   the 
.^^hioct  of  ant.  nafl  is  no  part,  of  the   present  question 
and  what  the  objectors  mean  to  urge  is  as  follows :  First' 


n 


•' 


710 


OPIMONS    CK    EMINENT    LAWYERS. 


|l-;- . 


Tliiit  tlio  Ainciiciuis,  at  tlu;  time  of  makiiij!;  ><tat.  22  Geo. 
111.  c.  l(J.  were  in  a  state  of  legitimate  war,  heai'iiiff  the 
chiiraeter  oi'  ('or"'i:ii  enemies,  and  not  tiiat  of  rebels. 
This  is  inii)ii(.  in  the  passii>^;  of  such  an  act,  and  in  the 
wordirir  of  it  : — Peace  and  1  -uce — was  not  the  langiincre 
to  hold  to  rebels  :  nor  did  th  '  kini^  need  the  autiioritv 
of  an  act  of  parl'.ameid  to  |>roceed  with  traitors:  the  net 
has  no  dhject.  if  the  Americans  are  not  achintteil  to  l)e 
foreigners  in  this  t^i'.ii^action,  Secondly,  That  after  the 
peace  maih-,  it  ^tiU  remained  for  Americans,  if  thev 
eho-e.  to  .idheri'  to  the  |{riti>h  character;  and  it  is  not 
meant  tn  dcii;-.  tiiat  j>riiiiit  ludi,  the  Americans  are  to 
he  deemed  IJriti^h  siilijects.  Hut  tiio.-e  viio  diiiiiciliated 
thcm-ehcs  in  tiie  I'luted.  Strdt'-,  r  howed  t!iereli\-  a  de- 
lernunatinn  to  herome  American  citi/en-;  and  attci'siich 
idi;ii(H-.  they  cease  to  lie  Briiisli  s^hjeids,  and  caniml  re- 
siMue  thai  character. 

Il'  1  have  i:()|  >tated  the  al)o\'e  |ii.iuts  ipiite  eoirectl\'. 
nor  with  all  llie  advaiitmre  tli.it  helnm^s  to  them.  I  Impe 
I  .-hall  li  •  p;u(lnned  In-  lliMse  \v!io  made  them,  and  who 
rely  npim  theui:  they  were  cnmmimieati'd  to  me  in  ;i, 
raitid  ennvei-atinii  nnl\  ;  fur  nut  hiii:  on  thai  >-ide  of  tho 
(luestion  has  hecu  lait  into  wrilin;;:  I  have  done  mv 
host  to  retain  wliit  I  he.ud  and  i  >  >i;iie  it  fair!'-  and 
fidl.v. 

1  am  tiitallx  al  a  los-i  *o  comprehend.  :it  w  !>at  period 
ol  the  war.  or  li\  wliat  inodJiention  of  ciu  i'\  inix  it  on 
eitiiei"  on  one  side  oi'  the  oilM'r.  or  l'\  what  events  oi' 
oireumstaiiees,  that  whieli  wi  •  onee  rel'eilioii  ee.i~i'(|  to 
be  so,  iind  the  traitors  heeanie  changed  into  aliens  wng- 
iiijj  legitimate  foreign  war.  .\'<  to  the  words  peace  and 
truce,  1  do  nut  understand  wh\  they  are  not  um  appliciv- 
blc  tu  war  coupled  with  rubuUiuu,  us  tu  war  not  cuupled 


OF    THE    r,AW     OF    NATION! 


with  it.     F(,rw 


III 


and  I  do  not 


nr  IS  still  war,  wlmt 


sec  wh\-  the  war  ()t'rel)c'i 


ovc-r  may  pive  rise  to  if 


gvatcnv.^  war.  and  therefore  needin- 


that  attends  all 


(•\p 


AV 


ther. 


ars.     Surelv,  in  the  t 


wore  treaties  and  truces  and 


is  not  legitimate, 
vy  consideration 
iiiie  of  Chaiics  I. 


a  jieace  for  a  short  t 


poacc  too;   there  was 


Lnrd-('h 


inie    I    think  in  101.-,,  and 


trail 


anoellor  Clarendon  entitled  tl 


.^et,  the 


tactions,  a  '■lIis(,„-voftlieIN.l)elli 


n.iirative  of  these 


lias   ever   dniil.ted.  I),.    Ju-  1 


on 


and  111)  man 


was  t' 


war  levied  af,'aiMst  Charles  I 
althdugh  it  was   attended  witj 
iiiand  names,  and  ulthoii.iili  inmiv  a 
agreed 


iw-nian,  or  layman,   tliat  the 


'casdii  and  n 


'hell 


ion: 


1  success,    .'ind  could 


COlll- 


\\.\v 


in  applying  to  it  the -lualilicd  appcli 


inoii->t  us  have  !f)iifr 


it  ion  ofciiil 


and 


and  t 


As  to  the  neces>ity  ,.r  making  sudi 
living   thcivhy  |>f.wcr  to  Ww    V 


a<t  of  parliament, 


nice,  hecause  the  A 


iiiir  t 


o    :nak(> 


peace 


I'  .■I'lcjin-  w 


emies,   and  ceased    to  l.e    trait 
curious  that  a   dilicHiit 


li'M'oMie  alien 


CIl- 


ors  and    rel 


l.v  t 


reason 


"•Is;   it  i.s  very 


ic  m;ikers  of  tl 


If  act ;   that 


lliiC 


paiiianK'ntjuy  dch.ite..  of   the  I 
given,  .seems  to  me  to  sn|.ersede  tl 


'"'■  making  it  was  uiven 
ii'ason  i.-<  recoi,|,.,|  ,,,  (|,q 


le  I 


iiig  any  new  one  like  tj 


and    tile    reason   so 
ioccs,sitjof  invent- 


H'  |)!e-eii 


The  IhII  was  called  '•the  Truce  P.IH  -  and 


into  the   house  of 


va~  hrou'dit 


cominoiis,  on    Felirn 
It    dn, 


tlie  attorney -general    \\allj 
il    hecame  a    .Mili|(.(t  of  d(.|,ai 
ii'ilion    ,111(1  paili.iiiient  were 
iii'':i-nre  lendiiiii'    to  lir 


tr.\   _S. 
s  ml  ,1 


IV' 


I7SL'.    1 


ppfar  that 


<•  111  .iin 


its  sta 


g,. 


the 


lent    I 


M'""  |>(-'aee,  aii<I  .mv 


iiig    It  .d.out  \\a«  too  wolc 


Mjuestioned  or  crili.i.sed.      |S,.;.  DeKrett's  Deh 


11. 


Ill,  3(i:i.j 


Hue    to 


ijitcs,  vol. 


•wever.  this  act.  whici 


a  struggle,  alterw.ird 


I  I  aiiie  into  existence  w 


illiont 


s  was  made  a 


'',i''<'(  of  disou.ssit 


>n. 


712. 


OPINIONS    OF    EMINENT    LAWYERS. 


I!  • 


When  it  had  been  carried  into  execution,  and  the  pro- 
visional  articles  with  America,  togetliei"  with  the  other 
preliminary  treaties,  came  to  be  ccnisidered  in  parlia- 
ment, in  Kebrnary  1783,  this  act  was  In-ought  in  iiues- 
tion,  and  tlaie  war,  expressed  ^reat  ililVerence  of  opinion 
as  to  its  original  desiiiii,  the  construction  to  be  [)nt  on  it, 
and  the  ell'ect  it  ])roduccd.  In  the  lirst  debate  it  was 
o1)ji-ctcd  to  the  provisional  articles,  that  the  kin^:  has  no 
riuht,  by  his  prcroijative,  nor  by  the  act  ol'  last  sessuin, 
viz:  Stat.  *_'2  (Jeo.  lil.c.  4(1,  to  alic'i.ib  ti'rritories  luit 
acipiircd  by  coiKjuest  dui-ini^  Mie  war.  The  ;;enlli'nicii 
ol"  the  law  bein^  called  upon  l)ythis  objector",  Mr.Maiis- 
licdd  answered,  that,  ce;  ainly  by  the  act  of  last  se-^-^iou, 
the  kiiin  was  authorised  to  alienate  for  ever  lb.'  iudc- 
pendence  of  .VuK'rica. — [Debrell's  Debates,  vol,  ix.  liSU.  | 
On  a  sul>.-e([iieut  day,  the  same  u-eiitleiuaii  [DebiiliV 
Ueliate-:,  \dl.  i\.  .",  I'J  I  au'ain  raisi'd  a,  (|uestiou  upon  tliis 
act.  it  a|ipearcd  to  him  that  no  pucdi  power  was  ;.^iven 
to  the  kinir  by  the  act  ;  that  any  ])ower  to  alien;. te  pait 
ot"  his  dominions,  or  alidicate  the  sovert'i^utv  of  tlieju, 
>honld  lie  conveyed  in  e\])ress  words, and  not  U'tt  toiin- 
pliealionand  con-truet  ion.  'I'his  bronchi  up  .Miv  Wal- 
lace who  was  the  fraiuer  and  mover  of  i  ln'  bdl,  .lud  u  ho 
declared  that  such  power  was  u;iNcn  by  the  act  he  s.iid, 
he  knew  ol  no  power  in  tin-  kin<^  to  abdicate  pait  of  his 
povcrciirnty,  or  dec'are  any  number  of  his  ^ubieet•^  free 
iVoni  obetlience  to  the  laws  in  being.  A-^  soon,  there- 
fore, as  the  resolution  lor  peace  ha<l  ])assed  the  liou.so,he 
hail,  with  a  view  to  enalile  hi-  Maje^tv  to  make  j»eace, 
drawn  tic  bdl.  and  as  the  subject  matter  of  it  was  ex- 
tremely  delicate,  he  hud   I u    exceedingly  cautious  in 

•  Sir  W.  Dolbfii. 


or    THE    I,AW    UF    .\ATlO.\v 


wording  it  as  generally 


ri3 


ol'  it   Wii.s  t 


iis  possible;   but  the  whol 


IJondence  of  A 


"  t-'iiahle    his  nmjestv   to  rcc 


"leiica;  and  that  it 


'^   .lim 

:ogtiize    the  inde- 

;''ive  the  kiiiir  siicl 


power,  was,  he  said,  indisjiutahle,  heeause  by    M 

i"g  (»r  it  that  p.nve 

Htatut 

ing. 


r  was    vested  in   tl 


0,  matter. 


<n-  thing  to  tl 


I  a 

le  W(,rd- 
"■  'viiig,  anv  la-'^ 


le  c(tntr;n;v  iiotwithst 


:ii. 


Tl 


satislV  tl 


ns   ex,,lanati(,n,  by  tlic   „„,\ 


<■!•  ol    111 


but  wl 


e   ..bjc'tor,    who   h.id    I 


'■  iH't,  did  nol 


"'  ""(,w    d.Tiared  he   hud 


H'eii    lU-  seconder  ol'  it 


interpretation  could   be   pnt 
tl 


never   sin 


l")SC(        s 


U(di 


ill! 


iiought  it  ,'ould,  he  wouM  not  i 
was   (hdended   by  tiie  att< 


"    "'■'  ''ill;   and  if  he    had 


ia\'e  >cco 


i^'l<d  it  :   bill  it 


,sai( 


i  tl 


"■iiey-general    Kenv 


iiize  the  ind( 


le  aet  clearly  gav(>  antimritv  tn  tl„.  |. 


I'll  ■.   who 


■peilcb-ncr  oj'  thr  A  I 


was  obvious,  tile  Ai 
"I"  persons  declared 


King  I o  reeog- 
'"■"'■■"i~:   adding  that  it 


'"•'■"■•"IS  standin-  in  lb-'  pred 


leainent 


to 


tin  act,  it  was  n 
'•uutious    inaiiiier 


'e  rel.cls  at    I 


leces.saiy  t  i   w 
in    uhi(di    il 


le  lime  ol'  passing 


Hill    It    Ml     I 


le  L'CiK.'ral 


and 


'"'    "I"'"   the    .statute 


hoiiL'h  tl 


the    l.ll. 


"•Hltorney-,,.ne,al    K.nv  o,.  (bus  supported 


attoincy-general    Wall 
I  lid  eU'eet  of  his    a<t,  he,  a!   ih 


IW  o|'    the   ciuw 


o  em 


|"'-itioii,    dial   the  iiierou;,t 
such  special  act  of  pm  liamenl  t 
the  American  independence.     Mr.  I 
upon    til!',    point    with    Mr    \Valiae<-      j  J) 


K'e   in    the   eoi|.,(nic»i(ju 
>ame  liiiic    di'iiic  I    the 


II  iif'ded  am 


>i') 


1 
A  lik.  dim 


i'liwer  iMo  declare 

■e  .joined  in  opinion 

■ites,  p.  314, 


law  1 


iiiii- 


Tcnce  of  opinion 
the  discutiHiuna 


was  (li.seovcrod  nmom,Mli'^ 


of  tl 


lie  provisional   arlieU 


I7f 


Ha  nuMMded  Mr.  WalUco.ou  iLc  change  of  Uio  ministry,  in  M»rcb 


Ul 


714 


OPINIONS    OF    EMINENT    LAWV'EkS. 


\   ' 


and  the  preliminary  treaties.  It  was  inaintuined  by 
Lord  Lougliboi-oiigh,  that  tlie  king  liad  no  autliurity, 
without  parliament,  to  cede  any  part  of  the  dominions 
of  the  crown,  in  the  pot^session  of  subjects  under  the  al- 
legiance and  at  the  peace  of  the  king;  and  this,  his 
Lirdshij)  said,  could  l>e  proved  by  the  recordn  of  paiHa- 
inent.  This  doctrine  was  treated  by  Lnid  Thurlow  as 
nnfoundcd,  ;ind  he  strongl}'  maintained  the  (Mmtrary. — 
[Debates,  vol.  ii.  p.  88,  8U.] 

The  dillerence  between  the  two  lurds  had  arisen,  not 
npon  the  independence  of  the  United  Staifs.  but  upon 
the  ci's-ion  of  the  Floridas  to  Spaiii;  and  it  was  on  that 
account,  no  doubt.  Lord  Louiibborough  stated  his  pro[)o- 
pition  witli  the  word<,  under  allegiance  and  at  tlie  peace 
of  the  k'\wx,  wliicli  was  a  proper  descriplion  n'thc  Flor- 
idas; but  the  same  Cduld  not  be  said  -o  fhll\  nf  tiic  I'ni- 
ted  States,  whiid),  though  under  the  allegiance,  could 
)iot  bi'  so  wi'U  said  to  be  at  the  pe, ice  of  the  king.  Lord 
Thurlow.  it  i-i  phiiii,  did  not  admit  tliat  tliis  dillerencc 
in  circumstances  made  any  (lin\'ii.'ui'r  in  the  power  of 
till'  p'(Mo'j,ati\(>.  It  nnist  siirei\-  be  conft;.-<>*ed,  that  tlils 
cession  ol'  the  i'"lori(las  to  Spai  .  at  ih.-  wry  inonn'ut 
that  the  American  indeprndince  was  acknowhdged, 
makes  a  great  breach  in  the  hypothesis  ol'  Mr.  Wallace, 
Mr.  Lc'  and  Lord  Longhborough,  who  tiiou^dit  stat.  1*2 
Gi'o.  111.  c.  40,  absolutely  necessary  for  cnaliling  the 
king  to  alienate  part  of  his  dominions,  Indeed,  the  pre- 
cedents are  all  ai^ainst  sucdi  a  rrstiiction  on  thr  prerog 
ative;  for  when  lias  there  b-cn  a  peacr.  thai  f  .jnie  We."., 
India  island  has  not  Ikmmi  ceded,  not  only  nicJi  ad  has 
been  taken  during  tiie  war,  but  tho.sc  of  iincient  posaes- 
eion  ?  Li  truth,  this  is  anotln  r  distinction  that  has  nn 
BoliJ  foundation  iii  law,  but  is  a  nietx'  cci  ccit.     It  i.->  well 


^in. 


OF    THE    LAW    Ol"    NATIONS. 


710 


krnwn  tliat,  ihe  laws  of  navigation  attach  tipon  a 
l>osses,>~i(ui  in  Amcrira.  or  Africa  inuaodiatoiv  on  a  hur- 
roiidor;  and  tin-  tenitiirv  is,  to  all  intents  and  purposes, 
as  nnich  the  king.s  as  any  ancion;  colony  or  plantation. 
It  i.s  tliereroie  \vlu)ll\-  a.ssiiniptio'i  to  ijiise  the  ubovo  dis- 
tinction, and  to  consider  .>^ncli  a  conquest  as  loss  a  part 
of  the  dominions  of  the  crown,  and   less  under  the  pror 


tc 


et  Ion  1  if  Ml 


iliaiiient.  than  t'-     more  ancient  [ 


)os-.i's>i()n3 


]>iit  tidxiii;.,  the  iud,i;nient  of  parliainer.t.  (wlii(di  linallv 


appiv.Ncd   all    tlirsf  treaties)  for  the 

on  this  (jni'-.tioii  (flaw,  we  are  ol)liy;ed  t 

thc 


^upreine    autlioii 


o  couchuk'  that 


he  kin-r  had  jM.wer  to   idinipiish  to  the  kin<r  of  Soa 


his  sovei-ei/nty  over  the  two  Kloi-id; 


witliout  the 


cial  aiit]io,it\   of  anv  act  of 


pain 
•pc- 


paihament  enahlin";  him  .so 


ti 


I'his  is  a  decision,  after  ai 


jc'ction  had.    Iiccii    taken   and 


gunieiit,  when  tlio  ob- 


sid'.'.s  heard 


openly  am 


full' 


icasoned    upon,    a 


nd 


hoth 


think,  he  doubted,  that  the 


If  ••aniiot,  after  tiiat.  as  I 


;ame  parliament  woul 


avo 


recowni/.etl  tiie  kin^■'s  power  to  relinrpijsh  1 
1y  over  the  United  .Stat 


iii.s  sovoreiiqi- 


cs    although  there  had   hoc 


n  no 


nrU    act  a.s  stat.  Geo.  HI.  o.  4G.     The  relimiuishing  of 

•ereicjuty  to  the  king  of  Spain,  wheiehy  he  part.s  with 

(11  inxal  authority  over  his  8uhject.s  in  the  Florida.s;  and 


sov 


the   r 
N 


elinqui.^hing  of  Hovereignty  over  tiie   col 


onie 


of 


ew  Hunipshire,  &c.  &e.  to  the  Unik'd  .States   whereby 


he  parts  witji  all  roval  authoriiv 


ovir  Ins  .suojcct.s  in 


erence,  in  a 


New  Hampshire,  &c.  &e.;  where  is  tlie  .lill 
.juridical  view,  between  tlipso  twoca.so.s^  If  \  ,,„  ,i„;,lvse 
them,  md  biin-  U,,.,,,  ,1o\m,  to  ilnur  tiist  piiuriple,  you 
will  (ind  it  amounts  to  th.>  same  thing  in  both  cm^o's]  to 
Ihi.s,  and  nothing  more,  namely,  that  !..■  nuix.-.  the  Fh.r- 
idas,  and  nmke.s  New  Hampshire,  &c.  equally  foreign  do- 
minions,     Kvery  oonsequencc  th.at  follows   upon  the  re- 


I 


H 


716 


OPIXIOXS    OF    EMIXEXT    LAWYERS. 


f 


linquishmoii'  of  ,-ovoiTi--iity,  is  a;<cri).ablo  to  that,  and  to 
that  only.     Tin-  in]ia!»itaiit.s  of  the  Florida.s,  and  of  Ne-,v 
Hampshire,  o'cc  \t  .  IjL'conie  Briti.sh  subject.-'  living  in  a 
foreign  ian<I,   and  hiso  all  British  advantages,   now  that 
British  g'-ound  is   taken  fVom  under  them,  in  like  man- 
ner,  and  in  none  otiier,   as  if  they  liad    removed  them- 
selves  to   tlie    firei-ii    ^n\\   of    Spanisli,   or   Portngiiese 
A-.neriea.      Indeed,  no  one  ha  ^  ever  preten(h"d  that  tlie  in- 
hal)itantsof  the  Florida^,  who  were  Ih'itish  sMl)iects  hoi'n 
■were  made  aliens  hy  the  ee.ssion,  tiiongii  some  do   mis- 
takenly suppose  tiiis  deprivation  to  ha])pen  to  Amereans 
of  the  United  States,  wh  .  wen>  put  nmler  the  same  eir- 
cnm-f,uic(w,  at  the  s.ini<'  time.  !>y  the' same,  or  ])v  asinn"- 
lar  opiM-at  ion.eei  laiuly  for  the  same  purjiose.that  of  peace. 
I  say,  that  the  cevsiou  has  the  sinuie  <'n'ect  of  makint^ 
the  Floridas,  and  the   united  states  of  New  IIainpsiiirL>, 
&c.  &e.'forel<rn  countries;  and,  that  no  altei'ation  is  uv^do 
in  the  birthrights  of  iJriti-^h-born  subjects,  becau.se  what 
is  covenanted,  granted,  v.nd  agreed  in  the  treatw  relates 
wliolly  to   the  former,  ami  there  is  not  a  word    that   re- 
lates (o  !iie  latter.      The  Florida-^  art'  ceded  to   the  kin"- 
of  Spain  :    that    <  ontniiis  in  it  noihiiig   so   particular  as 
to  raise  a  question:     the  material    coii-^i.leration  is.   the 
case  of  Anierica.     The  definitive    treaty  hcgins    bv  the 
king  aeUnowloilgiug   the   united  stale ^   of  Nrw  Hamp- 
shire, &c.   &c.    to  he   free,   s;>vereigu.    .uid    indepi'udent 
states;  and  he  rolin(|uishes  all  claims  to  ihe  government, 
propriety,  and  territorial  rights  of  the  same  :   the   king 
here  parts  with  the  states,  that  is,  the  political  ma<hinc- 
ry  formed  lor  the  government  of  tho.so  colonies,  the  gov- 
ernor, the  assembly,  kc.  &e.  &e.  and  declares  liieui  inde- 
pendent; to  make  this  independence  quite  clear  ami  un- 
cloggcd,  he  relinquishes  all  territorial  hovereignty.     Tlie 


OF    THE    I,AW    OF    NATION- 


th 


'17 


injr 


given  up  In-  tlio  king,  is  h 


and  .luthority  ovor  tlio  local  auth... 
of  the  individuals  his  su})jects,   the 


IX  own  siiperintendance 
ority  of  tliose  places  ; 


uoth 


incr 


th 


ore   IS  not  a   word  in   the 


re  residing,  he  says 


iheir  hirthright  as  British  sni 


The 


lijeet? 
1-0   is   certainly  not  a  word 


treaty  affecting 


point;  hut  I  think   ti 


expressed    upon   that 


and  that  which   misleads  tl 


le  great  mistake  in  this  d 


iscussion, 


implication    which  thev  think 


lose  on  the   other  sidt 


I.- 


an 


tl 


nece- 


iis    Iraiisaction  of  o-raiit 


;ardv  ai-isc 


and  they   allow  themselves  to   1 


ing  inde])endence  to  A 


s   npi,:i 
mericti : 


for 


•cc  of  expressions,   which,  without 


'0   canied  awav  hv  the 


\u 


g,  .^eem  to  signify  sonietl 


anv  defnied  me; 


iini 


out  examination   into  tl 


and  are  rejieated   with- 


that  1 
Stat 


'y  acknowledging  tl 


loir  import.      It    has  1 


»oen  said, 


es.   i 


cans,  and  fhev  of 


H'  king  dissolved  the  alleo' 


10  independence  of  the  United 


lance  o 


f  th 


<'oui'se  were  m 


ference  drawn  from  the  ind 


ide  aliens;  tl 


IIS   I 


ficti 


epei 


iilcnce.  hut  it 


sucli 


ion   ot   imagination  anumg   politicians 
principle  in  the  law  of  England  ;  it 


th 


uneri- 
u  in- 
llya 


ore  IS  no 


of;  can  any  hook,  va 


se,  or  ( 


lict 


never  was  heard 


'o  most  i-( 


'i"<o  intimation  of  a 


nm  he  shiiwn.    thai 


nv  s 


U(d 


he  cessKi 


I  operation 


•loftorritnry,  t he  king  has  alwavs  fori 


gives 
?     I 


n 


aic  any  thing  expressly  on  ll 


)orne  to 


and   never   hcfofe    1 


le  a 


rti(de  of  alleirianct 


that  al 


las  any  one   raised    tl 


ogiance  was  ever   sin-rendcrcd 


farther    than    th,.  nat 


>v  tl 


ure  o 


f  tl 


' i-truction, 

king,   any 


le   cc 


ox<-rcis(.  (Mill   ..njuynient,   circuniscrihe    tl 


ii'ii  'liil,  in  point  of 


As  t!i(>  kinu-  1 


as  in  no  easi-  of  cession  mad 


i-copt'    of   it 


I'lHpiishnicnt  of  allegiance  due   t( 
ca.«e  of  such  cession   vcntinvd  to  tal 


e  an  a< 


dual 


re- 


ii'd 


Ins. 


hut 


hcloui^cd  to   tl 


iin,  so  has  he  in  no 
ke  away  what   was 


le    individii 


AV 


lio  wciv  to  sulfi'r  enouirh  in  h 


his   suIi|octs; 
i'lg   oonqiellcd    tlieuce- 


718 


OPINIONS    OF    EMINENT    LAWYERS. 


forward  t)  live  in  a  fjreign  laud,  and  wli;)  niiL!;ht  very 
■Well  l)e  indidiri'd  with  the  consolation  of  retainin.i^  their 
birtliri;j,'ht  of  British  snlijects ;  a  ri.^dit  which  ini,ti-ht  lie 
bron<;ht  into  enjovnient  and  exeri'ise,  wlienever  they 
plmnld  ii!Z:iin  cvnne  to  live  npon  British  gronnd. 

AVilli  nil  tlio  instances  of  cessi  nis  which  arc  examples 
to  the  CDiilrary.I  cannot  nndorstand  how  any  one  slionld 
entertain  the  iin;ii;inatioii  of  their  ellect  in  dissolving 
personal  alleiiiance.  accompanied  too  with  such  an  incon- 
seiinont  rc>nlt.us  that  the  British  suhject  so  released  he-, 
comes  theri'liy  iin  alien. 

To  return  to  tlie  (iljjectic/n  which  T  was  to  con-ider.  in 
reirard  to    tlie  desiuii  anil    eUV'ct  of  stat.  22  Geo.   111.  c. 
■[('>.:   it  apjiears.  t'rnni   what  I  have  hel'ore  detailed  out  of 
tlie  ParlianuMit  iry  Oehates.  ttiat  the  statute  was  deemed 
iiece"ni\.  i!\  ordi'i'  to  satisfy  the  scruples  of  some  per- 
sons, wlio  tliMui:lit  that  the  kini;-  had  not  at  common  law- 
power   t)  alienate  any   part  of  his  doniinions:   fuither, 
that  it  was  nere<<  try  tin'  kinu"  shonlil  iia\('  ]iower  to  sus- 
pend th.    (ipiTatii'ii  (if  certain  acts  of  ]i;ii-lianieiH,  wliitdi 
it  wasfnrc-cen  niinlit  stand  in  the  way  of  inakinu' peace. 
It  was  afterwards  contended   that  the   statu!"  had  also 
th(>  special  en'cct  of  authorising-  the  kin,^'  to  ,urant  inde- 
penden  ■('  to  the  c(ilonie>;    hi-cansi',  as  it  empowered  him 
to  make  peace  or  truce.  an\  law.  statute,  matter, or  tliin;^ 
t  )  tile  contiarN   not  u  it  listandinu.',  it  of  cour.se,  say  those 
ohjei  lors.  riup  iwei'cd  liim  to  i;rant  iudcpcudence.  or  in- 
d  'cd  a;!\  tliiiii:'  that  -liouM  lie  deemed  necessary  towani ■; 
makiir.;- such  ]ieacc  lU'  (rnee;  meanimi  hysnch  independ- 
ence   di-lianchisenient,   and   convertinir  tlie   Americans 
into  aliens, 

AHcr  sn(di  exi)licit  discovery  as  was  Itcfore  made  of 
the  nature  and  design  of  the  act,  how  are  wc  to  acqui- 


OF    THE    LAW    OF    i\ATION! 


719 


c?ce  in  the  construction  tl 


tion?     Whivt  re: 


niittcd  to  be  alien 


mate  war,  and  not  reliel.s? 


HIS  put  upon  it  in  the  oi)jec- 
ason  i,s  tlicre  for  sajing  that  tlie  act  has 

uiericans  were  ad- 
foreigner.";,    in  a  '<tate  of  lefiti- 


ilo  meaning  or  object,  unless  the  A 


s  ant 


Tlie  second  of  th 


ese  renewed  objeeti,)ns  to  (iie 


rranJ 


common  law  position  on  which  I  i»uild  ti 
to  my  understanding,  as  extraord 
as  the  preceding;  but  it 


lis  ai-irunieut,  is. 


inar\-  and  as  aiiomal 


IS  not   so   ii()\el.      I 


have  before  lieard  the  notion  ot  A 

themselves  in  the    L'nited  stal( 

quence  of  such  election,  pronounced  to  l)e  no  1 


adii 


ous 
lit,   I 


incricansdoinicijiuting 


and 


ocmf;'.  HI    consc- 


ish  subjects,  but  aliens  a 
it  always  seemed  t 
less  assumption,  totall\-  ir 
cedent. 


onger  Brit- 
nd  American  citizens  onI\  ;   \c't 


0  me  to  be  an  arbitrar 


and  uround- 


reconcilaljb;  t( 


)  piiiiciplu  or  pre- 


As  to  the  precedent,    I    must 


stances  of  the   Floridas,  To! 


;:iin  recur  to  to  tlie  in- 


have  been  ceded  to  1 
cd    to    the   JJritisii-b 


>ag(),  and  (ithcr  p 


oreign  ])owei': 


aces    that 
^\  a<  it  e\er  oblc-t- 


10 


tries,  that 


111   subji-cts  inhabitiii',:'  tl 


lose  c  >uu- 


lia\iug   doinicdiated  t 


ii-m^cives    then 


ere   considered  as  ali» 


thev 


■us   in    the     1 


A\'here  should  men 
is?     And  did  it  ev 


>rii.i>li   diiniiuions  1 


■HMloniieiliated,  but  where 
er  enter  into  the  mind  of  tli 


Ills  ministers,  that,  u[)on  a  cession  of  lenit 
i>h-b()rn  subjects  inhaliiting  there  si 
hazard   to   their   woi-ldly  all'air: 
their   family?     There  ai 


lu'ir  home 
king  or 
"IV,  the  I5rit- 


louid  migrate,   at  all 


and    (li( 


prospi'iitv    of 


■e    no  surb    miiiiati 


iiU' 


lev  (  \-er  lieen  ( 


expectations  of  them  ;   nor  have  tl 
necessary  for  keeping  alive  the   birtlii'i-bt 
subject.      Why  then  should  it  le  necessarv. 


no  siicii 


:ccmc(.l 


lor 


tiint 
States? 


a  Ihit 
the  1 


isli 


irst 


in   the    case   of   the    inhabitants    of   the    rm'ted 


'  I 


720 


OPINIONS    OF    EMINENT    LAWYERS. 


I  think  it  erroneous  in  principle,  because  it  makes 
that  depend  on  the  option  and  capriciousness  of  the  por- 
f<on  himself,  which  has  ever  been  deemed  an  indeiilile 
character,  one  he  is  not  at  liberty  to  put  off,  that  of  a 
British  subject.  All  the  maxims  that  we  have  heard 
about  birthright  and  natural  allegiance  are  contrary  to 
such  a  supposition,  of  a  person  choosing  whether  he  will 
cease  to  be  a  British  subject  and  begin  to  be  an  Ainori- 
can  citizen;  but  all  those  maxims  are  consistent  with 
•the  construction  which  I  contend  for,  namely,  that  such 
persons  owe  a  local  allegiance  while  in  America  ;  and 
when  they  come  here,  their  rights  of  British  subjects 
revive,  and  their  natural  allegiance  attaches:  and  it 
cannot  be  denied,  that  in  such  a  state  of  things  there  is 
n  reciprocity  of  duty  and  protection  between  the  sove- 
TGX'^n  and  the  subject,  which  is  (piite  commensunite  with 
their  respective  situations. 

This  imagination  of  optional  allegiance,  and  extin- 
guishment of  natural  rights,  is  wholly  inconsistent  with 
the  position  resolved  in  Calvin's  case,  which  is  laid  down 
generally,  without  making  the  consequence  of  continu- 
in<^  the  rights  of  birth  to  depend  on  any  condition  or 
observance  whatsoever.  Such  absolute,  entire,  and  in- 
delible quality,  is  what  the  connnon  law  ascribes  to  those 
rights  of  subjects  that  come  to  us  by  birth,  and  by  birth 

only. 

Such  are  the  observations  to  which  these  two  new  ob- 
jections seem  to  l)e  open.  These  objections  do  not  ap- 
pear to  me  to  have  more  force  in  them  than  the  tbrmer; 
and  1  do  not  see  any  thing  in  either  of  them  to  ir./ali- 
d.ite  the  ri'solutit)n  in  Calvin's  case,  and  the  application 
of  it,  without  any  qualilication,  or  deduction,  to  citizens 
of  the  United  States.  Dec.  15,  1808. 


OF    THE    LAW    OF    NATIONS. 


721 


Decemher   IG,  1808. 
In  a  conversation  with  a  civilian  upon  this  subject  I 
found  he  liad  made  xv,.  his  mind  to  the  negative  of  tlie 
question;  but  it  was  upon    principles  wholly    indepen- 
dent of  the  c(,nunun  law.     He    considered  British-born 
subjects,  residing  in  an    island  or  countrv  ceded  bv  his 
Majesty,  to  become  (hereby  aliens  ;  he  could  not,  there- 
fore, lie  said,  doubt  aboutthe  state  of  Americans  especi- 
■illy  after  the  act  of  parliament  which  has  been  so  often 
cited.     lie   called  for    some  ease    latelv  decided  in    the 
courts  at  Westminster,  to  contradict  wjiat  he  alle-ed  of 
^•ededcouutries;   1  had    none  to  adduce,  and  could  only 
refer  to    the  common    law   priiK-iple,  which  had   never 
!)eon  denied. 

I  precei^     rhat  tho  civilian  went  upon  the  law  of  his 
court,  where  they  hold  that  persons  take  their  chnr.acter 
i>'oMi  the  country  where  they  reside  ;  so,  th.  ceded  conn- 
try  becoming  fbreign,  tliey  deem  the  inhabitants  lorei-n 
too.     Such  is  the  nde  in  prize  causes,  where  hostilitv1.«^ 
to  be  regarde.1,  which  must  ever  be  a    national,    not  a 
personal  consideration  ;  accordingly,  an  enemv's  country 
mak^s  nil  the  inhabitants  enemies.     So,  indeed,  at  com- 
mon law,  the  country  gives  the  character  to  the  persons 
who  inhabit    it,  in  mutters    that    are   governed    by    the 
character  of  the  C(Muitry.     The  British-b,.rn  subjects  of 
a  ceded  colony  h.se  their  character  of  British  colonists, 
because  their  country  has  become  foreign  ;  they  are  re- 
strained by  the   navigation  laws  that    before   protected 
them  ;   they  camiot  trade    as  JJritish    colonists.       They 
are    fmeigncrs,  (hcrcf.^ir.  in  everything  that    relates  to 
the  country  they  live    in,  as  the  civilian    contends;  but 
the  common  lawyer  will  add,  thev  are  in  their  own  per- 
92 


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IMAGE  EVALUATION 
TEST  TARGET  (MT-3) 


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Photogi^cipliit: 

Scienc:es 
Corporation 


13  WfST  MAIN  STRUT 

WtBSTfR  N  Y    I4M0 

(716)  ITl-^JOJ 


^ 


722 


OPINIONS    OV    EMINENT    tA'.WERS. 


:m 


"^^HR^' 


scnal  rights  still  British  subjects,  as  they  were  born  ; 
and  they  will  be  entitled  to  claim  the  privileges  of  such 
whenever  they  remove  from  the  foreign  country  which 
obstructs  the  application  and  exercise  of  them,  and  come 
to  a  place,  that  is,  some  place  in  the  king's  dominions, 
where  alone  the  privileges  of  a  British  subject  have 
their  exercise  and  application. 

In  truth,  the  character  of  a  British-born  subject  is 
not  merely  national  and  local,  but  personal  and  perma- 
nent. It  is  born  with  him  and  remains  with  hmi  during 
life,  never  to  be  divested  ;  unchangeable,  inde'iible.  It 
is  not  so  v/ith  what  is  called  a  British  fubject ;  that  doo^ 
indeed,  depend  upon  locality  ;  and  that  is  the  character 
w!\ich  the  civilian  contemplates.  I  helieve,  much  of  the 
mi.^apprehension,  upon  this  occasion,  has  arisen  from 
not  preserving  the  distinction  between  British  subjects, 
and  natural-born  British  subjects  ;  they  are  not  the 
same,  though,  I  believe,  they  are    reasoned  upon   as  if 

they  were. 

British  suiiject,  and  alien,  are  not  terms  contradictory; 
Ijecause  the  two  characters  may  concur  in  the  same  per- 
son :  the  inhabitants  af  the  Dutch  colonies,  now  in  our 
j)ossessi(m,  are  British  subjects  ,  they  have  taken  the 
oath  of  allegiance,  and  tliey  have  the  advantages  of 
Briti><h  colonists ;  but  they  are  aliens,  because  they 
were  bor'  out  of  the  king's  allegiance.  The  iuhahitant.s 
of  the  Floridas,  born  while  those  were  British  colonies, 
are,  iiowcver,  not  now  British  sultject.-.  betausc  tlicy  iu- 
ha)>it  a  foriign  country  ;  nor  are  lliey  aliens,  because 
thev  were  not  ttorn  out  of  the  kin^;'s  allet:ianee ;  Imt 
thev  are  nat\inil-born  liiilish  sulijects,  be"iiuse  tliey 
were  l)orn  witiiin  the  king's  aUegiance:  •<>  that  it  may 
be  predicated  of  the  .same  person,  that   he  is  a   •  British 


op   TBE   LAW   OF   NATIONS.  723 

^ubjoc,,-.  „„d  „„  ,.„,;,„.„  that  he  is   «a   natural-born 
B.  .l,»h  .,ul,jccV  and  not  a  "  British  object :"  aocordin. 
l^  as  von  .p„akf,l,e  local  and  nationnl   character.  „°. 
of    he  personal  character.     "  British  subject"  is  a  l-rn 
f  co,nn,„n  parlance,  that  has  not  proper!,-  a  leal  de 
rn.cd    ,ncan,„«:  it  serves  snificienxly  in  o  dinarfd   . 
"-■sc  .,..  "„atnr.l-born  subject,"  but  it  can  be  „r„pc.  v 
P     ed™  V   or  i„tin,a,i„g  the  local  and  n„ti„n.ll  d,:.; 
■Htu,     Tl.c  true    legal  dcseription   is  that  of  n.,tural- 
l»'."-b.,e-t:  this  1,  the   opposite  ,„  alien;  and   t  cse 
■■"'iK'  ';■.•.-  .bat  describe  the  personal  char.^ter.wl'- 

only  one  ,l,a   ,s  a  sul.ject  of  discussion  in  the  books  of 
the  ooniiiioii  law. 

Through  the  .hole  of  the  .rg.nnent,!  have  been 
-  >t,„g  on  th.s  p..onal  character  of  Briti^h-horn 
Anenoans;  hut  those  who  object  torn,-  conch..sion  in 
favor  o    them,  from  the  oomn.on  huv    principle  (which 

mOK,weve,thevao    not   pretend  to  dilpu.:) 
Up  then.  e,e    pr.noipally    on    the   local  and   nationai 
ch.u.uter  ,>f  the  present  Americans.       Their  two  great 
..p.c.sare.p.ite  of  that  sort ;  namely,  the   stat.  22  Geo 
<  •  4(.    lor  n.aking  peace  or  truce  with  the    colonies 
-'     "a..fat,..nsa,.,|    the    definitive    treatv  which  uc 
k"-vl..g..    „,.    iHUependence    of    the    United  State. 
-.'I    .vuwp.i.hes    sovereignty,    propriety,    and     terri^ 

'"■"!'.;'""" "■     '^'"-"b-    all    these   are    national    and 

1-';1  '<l,...s  nvcted  to  the  very  soil,  and  linuted  ..y 
"""■^  ■""'  '-nds.  N-.thing  is,  l,y  either  instrument 
Na.d  o,.  don..,  as  to  the  pergonal  character  of  the  inhal.i- 
'ant^  ,  that  was  left,  as  the  personal  character  of  the  in- 
''■''"'"•"■^  "I'llu-Floridas,  to  the  sentence  and  disposition 
ul  the  law,  when  any  of  the  individuals  residing  thero 


^1 


I 


724 


OPINIONS    OF    EMINENT    LAWYERS. 


chose  to  remove  himself  into  a  situation  where  his  per- 
sonal character  could  he  broughf  into  question,  and  con- 
sidered distinctly  from  local  imd  national  character, 
which  the  king  of  Great  Britain  had  been  pleased  to 
superinduce  upon  him  by  ceding  the  country  where  he 
was  born  ;  that  is,  when  any  such  individual  should 
choose  to  come  into  the  king's  dominions,  where  alone 
his  personal  rights  can  have  their  application  and  ex- 
ercise. 

The  only  consideration  for  us,  in  this  country,   seems 
to  be  such  personal  character,    whether  it  is  the  case  of 
Florida,  or  a  native  of  the  United  States,  born  within 
the  king's  allegiance. 
D^c.   Ki,  1808. 

Dereniher  17,  1808. 
A  passage  has  been  cited  by  the  objectors  from  Mr. 
Wooddesoii's  lectures  ;  and  as  this  is  the  only  book  au- 
thoritv  they  have  been  able  to  adduce,  it  must  not  be 
let  pass  without  observation  ;  especially  as  it  has  ac- 
quired a  sort  of  retlected  conse(iuence,  Ity  being  insert- 
ed in  Sir  Henry  (IwiUiui's  editinn  of  Bacon's  Abridg- 
luont,  title  "Alien."  The  passage  is  this,  "  But  when 
by  treaty,  especially  if  ratifird  by  act  of  parliament, 
our  .sovereign cedes  any  island  ir  re;;inu  to  another  state, 
the  inha))itants  of  such  ceded  territory,  tiiough  born 
under  the  iillcgiance  of  oiu-  king,  or  b.'ing  under  his  pro- 
tection wiiilc  it  appcitiiiui'd  to  ids  crown  and  autiiority, 
1)econi.',  1  apprch.nd,  elU-ctually  aliens,  or  liable  to  (he 
disabilities  of  alienage,  in  respect  to  their  future  e()ii- 
eenn  with  this  country.  And  similar  to  this,  1  ta'.>e  to 
be  the  ccmdition  of  the  revolted  Americans,  since  the 
recognition  of  their  independent  commonwealths." — 
l_Vol.  i.  p.  382.] 


OF    THE    LAW    OF    NATIONS. 


72c 


To  those  who  insist  on  this  a.  an  anthoritv  for  saying 
that  such  persons  hoconie  aliens  and  cease  to  he  naf'iral 
born  subjects,  it  , night  be    enough  to  rep] v,    thatap^o- 

pos..onh.K^ao.n   with    an   alternative;,  this  .sZ 
not  ,n  ,t  suffic.ent    precision    to   be    authority   for    an, 
th.ng:  "effectually  aliens,  or  liable  to  the  disi.biliti  Tof 
alienage,    is  a  circumlocution  that   does  not  suit   with 
the  plainness  re.iuired  in  a  juridical  proposition      And 
:.e  ,      thud:   the  author    has  expressed    himself  not  un- 
suitably  w,th  another  sense  of  the  word  ulieu,  accompanJ- 
^as      here  is,    with    an  exposition.     It  seems  tl  L 
that      or     ,s    not    intended    he.e   to    be  a  conjunction 

merely;  but  It  bears  a  sense  that  is  not  uncoilon^t 
ntroduces  a  member  of  a  sentence  that  is  n.eant  to  be 
explanatory-  ol  the  foregoing;  and  is  the  same  as  '<  or  in 
otherwords,-^orto...  A  more  plainly,'-- or  to  speak 
-- properly."  In  this  .sense  of  <^.V'  he  explain  he 
nieann.g..^..nectually  aliens,'  by    shewing,  they  arl 

-Me  t<.  the  disabilities  of  alienage  in    .esp^Uo'ti;^ 
hm.re  concerns  with  this  country."     Their  "  future  con 

oorn.  with  this  country"  mu.st  be  the  trade  the.  carry 
onw,thth.s.ountry;  sometlnng  wln,.h  they  iran.sact 
"•"■" 't  .i.stant  place,  something  that  affects  "  the  whole 
co.mnun.ty,  .something  that  ari.ses  out  of  their  h,cality 
an  national  character.  He  is  sp.,,,;,.,  ,,  ,,,^.  ,  J 
and  national  chnracter,  which  we  .li.scussed  before  (in 
pa.  o!.l.)and  whirl,  was  superinduced  .m  the  inhabitant. 
'•'  these  ceded    countries,    in    respect  of  which   the  in- 

""'"""*■'  ' '""^'  ^'  «P^''i^'«  <>'■  alions,  or  as    the    author 

^'Npresses  >t  m  an  undefined  epithet,  "  effectually  aliens  " 
"-•,.'<nppo.s<,.  in  effect  aliens;"  that  i.s,  in  th^  case  of 
trading  with  this  country. 

1  take  this  to  have  been  what  the  auMior's  mind  was 


i 


726 


OPINIONS    OF    EMINENT    LAWVERS. 


then  contemplating,  the  local  and  national  character  of 
such  ceded  colonists;  and  by  no  means  their  perscmal 
character,  that  of  latural-horn  subjects,  which  h"  know, 
as  well  as  all  lawyers,  can  neither  be  surrendered  nor 

taken  awa^-. 

Mr.  Wooddefon   has  certainly   been  not  sufliciently 
technical   in  expressing  himself  upon  this  occasion.     It 
may  be  fit  enough  to  oppose  what  he  has  said  by  an  ex- 
pression in  the  treaty  of  peace,   which,  though  in  like 
manner  not  technical,  h;.s  evidently  a  meaning  that  caiv 
not  be  mistaken,  and  tliat  makes  against  his  conclusion. 
In  the  fifth  article,  it  is  agreed,    that  congress  .^hall  re- 
commend to  the  legislatures  of  the  respective   states,  to 
provide  for    restitution  of  confiscaiod  estates  whicli  be- 
long to   real  British  subjects.     Now,  if  there  are   "  real 
British  subjects,"  it  is  implied  there  are  British  subjects 
who  are  not  real,  thot  is,  less  so  than  the    others.     No 
one  can  doubt,    tliiit  the  one  expression    means  -British 
subjects,  not  comprehended  within  the  new  states, ertct- 
ed  and  recognized  by  the  king's  acknowledgment  in  the 
treaty  ;  the  other  must  mean  tho-e  'nhabiting  the  United 
States,     it  is  plainly  indicatea  therefore  by  this  phrase, 
that  both  contracting  piirties  in  the  treaty  a.lmitted  thii*. 
the    inhabitants  of  the   United    States    did    remain,  in 
some  sort.  British  subjects  ;  r    1  the  mode  in  whi.;h  tLey 
so  continued  can  only   be  that  which  I  have    been   con- 
tending for. 

Jhc.    17,  ISOS. 

According  to  the  foregoing  reasoning,  I  think  the  law 
officers,  if  (onsidtcd,  woidd  give  an  opinion  somewhat 
to  the  following;  efl'ect. 

'Siipposii/ opinion  of  thf  law-ofivr-'i. 

"  In  obedience  to  your  Lordship's  commands,  we  have 


OP    THE    LAW    op    NATIONS. 


727 


considered  the  question,  whether  inhabitants  of  the 
United  State.,  born  there  before  the  indepenuence,  are 
on  conuMg  to  this  kingdom,  to  be  considered  as  notural- 
born  .abjects;  and  we  are  of  opinion,  that  such  a  p.r- 
«on,  coniin.  to  this  kingdom,  cannot  be  denied  the  char- 
ivcter  and  pnvilege  of  a  natural-born  subject 

t.-n^V"T!^'  *^"'  "^""''""'  '"'  ^''''''  ^'•^'^"  clueconsidera- 
bon  to  all  (he  top.cs  that  have  been  suggested  to  us  from 
diflerent  quarters,  on  both  sides  of  tlio  question,  as  well 
■s  to  the  pnncples  of  the  con.mon  law,  which  are  to  be 
found  in  books  of  known  authority  nniongst  lawyers 

Among   the   suggestions  that  have  been   made  to  us 
are  stat.  22  Geo.  III.  o.  40,  and   the  definitive  treaty  of 

peacej^ththeUnited   States;  and    we    find   ourseL 
obliged  to  declare,  that  nothing  in  those  two  instruments 
appears  to  us  to  makeany  alteration  in  the  case  of  Ameri- 
cons,  when  compared  with  others  of  his  Majesty's  sub- 
jects who  .eside   in  a  ceded  country      L.  like  manner  as 
he  Mih<U.tants,  natural-born  suljects  of  his  Majestv,  in 
he  two  f  ondas,  ceded  to  the  king  of  Spain,  (at  the  s'ame 
*";"\th    ^the    independence  of  the   Tnited    States  was 
ncknowledged)  are  ...till  dee.n.d  to  ...ain  their  privilege 
-.<1    c'haraete.    .f  natnral-bon.    sKbj...ts,    so,  ,ve  thi,:L, 
these  persons  being  similarly  einMun.tanced,  when  they 
-»ne  ...to  this  kingdon.,  cannot  be  uenied  to  retain  thei^ 
original  privileges  and  cl.,.racter. 

O..rreas,.usfo,.  thinking  thnt  the  statuteand  treaty 
'".■.ke  no  .blfeivMee  n,- peeuliarity  in  the  ease  of  the  Tni- 
'-i  States  are  f-.^e  :  The  statute,  upnn  the  face  of  it, 
''M-rstoh:.vebeenMK,d.>fortwo    purposes;    Fi.-st,   To 

'••-'"■  ^1- '-^  to  make  pe,....e  or  tn„.e  with  the  colonies 
;":  I'l^-'tat.ons  ,n  question;  Seeondlv,  To  enable  the 
k'ng  to  suspend  the   operation  of  certain  acts  of  parlia- 


I 


i 


1  1 


728 


OPINIONS    OF    EMINENT    LAWVERS. 


ment  that  might  stand  in  the  way  of  peace.  The  need 
of  the  second  provision  is  ohvious;  the  need  of  the  first 
is  not  so  phiin  ;  but  we  are  told,  in  a  debate  m  the 
house  of  coninions,  by  the  attorney-general  Wallace, 
■who  drew  the  l)ill  and  moved  it,  that  it  was  intended 
to  give  the  king  a  power  of  alienating  those  colonies; 
a  power  which  he,  and  some  others,  considered  the  king 
as  not  possessing  l)v  the  common  law.  Without  saying 
any  thing,  at  present,  on  the  justness  of  such  opinion, 
we  allege  it  as  the  l)est  testimony  to  the  design  of  the 
act.  This  design  is  perfectly  consistent  with  the  con- 
ception and  wording,  and  it  does  not  appear  to  us  neces- 
sary or  proper  to  supjiose  any  other  meaning  in  this 
act.  We  conclude,  therefore,  that  there  was  no  particu- 
lar design,  hy  this  legislative  measure,  to  make  anv 
alteration  in  the  character  of  the  Americans,  beyond 
that\vhich  necessarily  must  and  always  has  followed 
upon  the  cession  of  any  of  his  Majesty's  coh)nies. 

After  these  observations  on  the  act  for  enabling  the 
king  to  make  peace,  we  come  to  the  definitive  treaty 
itself;  and  we  find  ourM-lvcs  compelled  to  declare,  that 
as  we  per'X'ive  no  desigr,  in  the  act  to  enable  the  king 
to  alter  the  personal  character  of  tlie  Americans,  so  in 
the  treaty  wo  discover  no  declaration  or  provision  that 
can  be  construed  expressly,  or  impliedly,  to  altci-  their 
original  character  of  natural-born  subjects,  and  to  make 
them  aliens. 

In  the  first  article  of  the  treaty,  the  king  acknowl- 
edges the  United  States  of  New  Hampshire,  >.^c.  kc.  to 
be  free,  sovereign,  and  independent  states  ;  rnd  he  re- 
lincpiishes  all  claim  to  government,  pmpriety,  and  ter- 
ritorial rights  of  the  .same.  It  is  upon  this  provision, 
nnd   these  words,  that  the  separation  ami  independence 


OF    THE    LAW    OF    NATIONS. 


729 


of  those  colonies  are  grounded.  The  effect  of  this  pro- 
vision apper.rs  to  us  to  be  confined  whollv  to  the  soil 
and  territory,  which  is  thereby  made  foreign  and  ceases 
to  be  a  pan  of  the  king's  dominions  ;  we  cannot  discover 
any  ti,.,g  that  at  all  affects  the  personal  character  of 
the  natural-born  .,ubject«,  inhabiting  such  forei-n  ter- 
nt')ry.  ° 

Indeed,  we  are  much  surprised  that  any  such  peculiar 
effect  should  be  ascribed  to  this  cession  of  territory  to 
the  U.ated   States,  (for  so  it  is,  in  truth)  when  at  "the 
•same  peace,  the  adjoining  colonies,  the  Floridas,  were 
ceded  to  th3  king  of  Spain;  and  no  such  consequence  of 
the  ces.,or  ure  supposed  by  any  body  to  affect  the  nat- 
ural-born subjects  residing  there.     We  may  here  too  re- 
mark, tnat  the  cession  of  the  Florid.s  was  made  with- 
•Hit   .ny  such  enabling  .statute,  by  the   ki«g-.s   common 
law  prerogative;  which  domonstrates,  that  in  the  opin- 
ion ol   the  majority  of  parliament,  ^l-o  approved   the 
treaty,  the  act  of  the  attorney-general  Wallace  owed  it« 
origin,  not  to  an   absolute   necessity  in  law,  but  to  an 
abundant  caution,  or  some  scruple  in  politics,  which  de- 
serves no  regard  in"  a  judicial  consideration  of  the  sub- 
ject.     Wi-  are  nut  able  to  ...scover  anv  distinction  in  the 
two  cases  of  the  Floridas,  and  of  the  Un-^ecl  States.     In 
both  instances  the  soil  was  made  foreign,  ai-d  the  inhab- 
itants had  superinduced  upon  them  a  new  local  and  na- 
tional character;  that  is,  they  became  locally  the  inhab- 
itants  and  subjects  of  a  foreign  nation,  and  th:-y  lost  ad- 
vantages of  trade  and  benefits  of  various  sorts,  which 
natural-born  subjects  must  lose,  when  they  inhabit  and 
make  themselves  subjects  of  a  foreign  land.     But,  under 
the  control  of  this   new  local  and   national  character, 
their  personal  character  of  natural-born  subjects  stiU  re-' 

t7tJ 


I. 


rso 


OPINIONS    OP    EMINENT    LAWYERS. 


m.iins,  and  we  see  nothing  in  law  to  prevent  it  reviving 
and  enjoying  all  its  privileges  when  the  ]icison  conies 
into  the  King's  dominions,  where  alone  the  rights  of  a 
British-born  siil)ject  have  their  full  application  and  ex- 
ercise. 

Having  declared  this  onr  opinion,  that  nothing  is,  de 
facto,  done  b}  the  act  or  the  tieaty  to  take  away  the 
personal  character  of  natural-born  sulyects  residing  in 
the  United  States,  it  may  seem  unnecessary,  though  we 
think  it  not  unsuitable  to  add,  that  we  know  of  no  in- 
stance where  the  crown  has  presumed  to  exercise  the 
power  of  taking  away  the  personal  i-ights  of  a  natural- 
born-subject ;  neither  have  we  met  with  any  principle 
in  the  law  of  England  that  warrants  si;ch  a  supposition; 
nor  can  we  conceive  any  proceeding  by  wiiich  such  a  di- 
vestment or  extinguishment  of  natural  rights  can  be  en- 
forced. As  the  common  law  recognizes  no  such  princi- 
ple as  that  of  disfranchising  a  iiatural-lK)rn  subiect,  the 
character  has  been  deemed  indelible;  and  the  parliament 
has  never  interposed,  on  the  occasiims  of  cession  of  ter- 
ritor}-,  to  take  from  the  British  inhabitants  of  such  coun- 
tries that  which  thecoininon  law  has  permitted  them  to 
retain. 

Such  having  lieen  the  construction  of  law  in  cases  of 
cession,  which  have  been  made  sonietimes,  no  doubt, 
against  the  wi.^hes  of  the  inhabitants,  and  always  with- 
out asking  their  consent,  a  principle  of  Iaw  has  grown 
up  and  established  itself,  which  it  seems  too  late  now  to 
question  in  the  case  of  the  United  States.  V.'e  have 
given  full  coiiside:'ation  to  the  difference  of  circumstan- 
ces which  led  to  that  cession,  th''  rebellion  and  war  that 
preceded  it,  and  were  the  cause  of  it,  and  tiie  claim  of 
the  colonists  to  be  independent;  but,  we  think,  this  dif- 


OF    THE    LAW    OF    NATIONS. 


731 


ference  of  circumstances  makes  no  alteration  in  the  legal 
result  arising  from  the  new  situation  of  the  parties. 
Such  matters  are,  as  we  think,  wholly  political ;  and  as 
they  are  nut  of  a  nature  to  be  subjected  to  any  juridical 
examen,  we  do  not  see  how  they  can  be  brought  into 
the  account,  when  we  are  applying  the  legal  principle 
before  mentioned. 

Conformably,  therefore,  with  the  principle  and  prac- 
tice that  have  long  been  acknowledged,  and  declaring 
that  there  appears  no  reason  in  law  for  not  applvin-the 
•san.e  principle  to  the  inhabitants  of  the  United"^  Stltes, 
we  repeat  the  opinion  we  before  expressed,  that  the  per- 
sons described  in  the  question  ought  to  be  considered,  in 
this  kingdim,  as  natural-born  subjects." 

Such,  I  think,   would  be,  or  should  be,  the  opinion  of 
the  law-oiRcers  on  the  present  question. 
Dec.  21),  1808. 

Reply  to  ohservatiom  on  the  sulject  of  the  foregoing 
argmne)it. 

January  17,  1809. 
1^'irst,  I  cannot  admit  there  is  any  straining  to  bring 
the  Americans  within  Calvin's  case;  and  1  maintaii° 
the  circumstances  that  distinguish  them  from  the  pre- 
cise point  in  that  case  are  fairly  and  fully  considered  by 
nie. 

It  may  not  be  necessary,  in  arguing  with  you,  to  ad- 
duce such  authority  as  Calvin's  case,  because  ycm  d)  not 
dispute  it.  l?ut  (he  persons  I  had  to  deal  with  wei-e  ig- 
norant of  the  principles  of  that  case,  and  I  needed  such 
an  authority  to  si'i  them  right.  I  know  no  book  case 
where  the  principles  of  allegiance  and  native  rights  are 
laid  down  and  explained,  except  in  that  only  instance  ; 


I 


732 


OPINIONS    OK    EMINENT    LAWYERS. 


the  principle   and    nature   of  allegiance   and   of  native 
rights  is  the  first  step  in  the  present  argument,  and  the 
subsequent  parts  of  it  would  have  been  without  founda 
tion  if  I  had  not  taken  that  case  for  a  basis. 

The  necessity  for  going  so  far  back  in  the  argunipnt 
was  shewn  to  me  by  the  civilian  *  ;  who  laid  down  the 
law,  that  the  kings  subjects  of  a  ceded  country  become 
thereby  aliens:  when  he  called  for  some  decided  case  to 
show  the  contrary,  1  had  no  decided  case  (you  know 
there  is  none)  but  the  resolutions  ai\d  arguments  of  Cal- 
vin's case.  He  felt  this  to  be  an  important  authority ; 
and  the  piece  of  law,  which  you  admit,  i  doubt  whether 
you  can  ground  upon  any  other  authority  in  the  becks 
The  circumstances  in  Calvin's  case  are  diftV  rent  from 
those  of  the  Americans  ;  but  the  principle  is  the  same 
(I  mean  the  principle  of  the  resolution  that  I  quote) . 
whether  that  iliirerence  in  circumstances  makes  any  dif- 
ference in  the  application  of  the  principle  is  the  very 
question  in  hand. 

Secondly.  You  here  admit  that  natural-born  subjects, 
continuing  their  residence  in  a  ceded  country,  do  not 
thereby  become  aliens  :  you  go  so  far  as  to  think  that, 
if  they  joined  in  war  with  their  new  sovereign  against 
this  kingdom,  it  would  be  treason  in  them.  I  will  not 
say  any  thing  upon  this  point,  except  to  remind  you 
that  my  argument  is  wholly  confined  to  an  American 
cciing  to  this  country,  and  residing  here. 

The  other  point  in  this  part  of  your  answer  makes 
the  main  of  your  third  article. 

Thirdly,  Your  third  topic  is,  the  diflference  between 
ceding  a  country  to  a  foreign   power,  and  the  constitu-% 


Ant.  pa.  721. 


OF    THE    I, AW    OF    NATIONS. 


733 


tinf^  of  fi  sovereignty  Irom  among  British  .subjects,  and 
•ceding  the  country  to  such  new  made  sovereignty.    You 
fall  it  making  a   treaty  with    the   suljjects   thems.uves, 
that   tliey   should  hold   the  country  as  an  independent 
state;    ^' he  ceded  his  sovereignty  to  thorn."     You  rely 
upon  this  difference  in  circumstances.   whi»h  you  make 
between  ceding   to  a   foreign  sovereign,   and  ceding  U 
British   sul.jects,  as  you  term  it;    and  vou  mention^one 
.'.ertain  result   from  this  difference,   that,  in  the  former 
■     -ase,  the  levying  of  war  by  the  natural   subjects  would 
be  treason;   in  the  latter  case,  it  would  not.     I  pr.t^st 
I  do  not  discern  this  distinction  ;  in  both  cases,  the  sub- 
ject IS  put  into  such  peculiar  situation  by  the  act  of  the 
new  sovereign,  and  being  so  circumstanced,  whv  should 
It  be  treason  in  an  inhabitant  of  Florida.   inorJ  than  in 
an   American,  to  obey  the   militia  law  of  his  new  sove- 
reign,  and  bear  arms  against  us,  like  the  rest  of  his  fel- 
low subjects  ! 

Some  persons  would  argue  diff-erently  from  you  on 
this  point:  those  who  distin.,.,ish  the  British  subjects  of 
the  Flori<ias,  because  they  were  given  up  against  their 
will,  or  without  their  consent,  from  the  Americans,  be- 
cause those  claimed  to  be  independent,  would  not  in- 
fer  upon  the  former,  who  were  wholly  passive,  the 
crime  of  trea.son,  and  acquit  the  latter,  who  sought  and 
made  choice  of  the  peculiar  situati(m  of  double  allegiance 
ill  which  they  have  placed  tiiemselves. 

However,  this  point,  as  I  before  said,  does  not  bear 
iilion  our  present  question,  whidi  relates  to  the  Ameri- 
can while  he  is  in  the  king's  dominions. 

But  you  rely  Uj^on  the  difference  of  "  the  treating  with 
ilio  Americans,  and  giving  up  to  British  subjects  the 
sovereignty  of  the  country."     I  think  there  is  in  this  an 


J 


fi 


734 


OPINIONS    OK    EMINK.NT    La V  VERS. 


assumption,  and  u  rcliiiiK  e  upon  words,  wliioh  lias  no 
supjiort  tro;ii  tlic  loal  Iransaction.  To  conio  np  to  the 
rej)reseiitatioii  von  i  .akt'  about  "tlR'in,"  and  "they'' 
there  onjfht  to  he  a  eoven.aiit  and  iirant  IVoni  the  kiiiii', 
to  Mr.  A..  Mr.  11.  Mr.  C;  and  the  said  Mr.  A.,  Mr.  B., 
and  Mr.  C.-oti^ht  to  he  plainly  estopped  and  l)arred  hy 
what  they  took  nnder  such  eovenant  and  <;rant  from  the 
crown.  \\'hiMi  we  had  thus  ascertained  who  are  logal 
parties  to  the  transaction,  and  Icualiv  l)ound  h\  it,  wo 
mijrht  then  inspcrf  the  ciiai'tei' or  in.-liunieiit,  and  search 
"whetln'r  the  kinu'.  l>y  <iie  teiins  ol"  it,  relinipiislied  his 
claims  olalle^iaiii-o  wholly  or  in  part;  and  whether  the 
British  >-ulij('cl<,tiurt'iM  named, had  e\})ressly  relinqui>li- 
f'd.  or  were  cxpi'esslx-  dcpiived  of  their  native  rights,  or 
whether  sntdi  depiivation  arose  out  oi'  it  hy  necessary 
ronstr'iclmn. 

I  think  such  should  ha\e  ]n'vn  the  I'orin  of  the  trans- 
nction.  in  order  !i>  coine  n|i  to  yoiu'  suppnsitioii  :  l/iit 
vheii  we  exaiuine  it,  we  lind  it  to  he  tpiite  aneiher  sort 
of  proceed  in  LT  As  to  Mr.  A..  Mr-.  1?  .  and  Mr.  ('..  it  is  a 
matter  iii/i  ,■  ifHuy  n,  /(/ :  the\  are  not  partit's.  not  u.iuied, 
not  a'ludeil  to  it  d  le-  r.ot  appear  to  have  heen  trans- 
ncteil  \>v  them.  l-'l  us  I'onsjdrr  the  treaty  of  peace 
wiiiih  \\\\\<i  tie  the  iu-trument,  il'.iiiy.that  prodiici^s  the 
jauiipo-ed  ellei't 

Tlie  treat  \  de(  lares  New  li;imp-hire,  I've.  .'^cc.  i*^c  to  he 
free  and  ind(|Hiident  State-,  and  the  kini:;  relin(piishes 
the  ij;o\i'nuniiit  of  thrm.  Whi'U  t  liis  L;rant  and  cove- 
nant is  iMouLiht  |o  pl;\hi  fact-,  it  am  'luils  to  this,  tiial 
the  kin,!,;  will  im  hmirer  send  ucvernor.^  to  those  statof, 
nor  export  the  le^inlutive  and  r\ecutl\e  aull,orit\  In  lie 
.vuhordiuai-'  to  him.  'I'hi  kini:  L;i\ts  liils  to  the  Stales; 
hut    iiow  can  ilos  he  cou-inird  |o  taki'  any  tliinu'  aw.iy 


OK    THE    LAW    OF    NATIONS. 

from  Mr.  A.,  Mr.  IJ.,  and  Mr.  C.]     Tlie  !• 


tlie  alleirianoc,   wlii.-li  tlio  Stat(>^  owed  hi 


735 

<inr>;  give.s  away 


to 


givu  :   hilt  how  should  .smdi   l 


m;  it  was  h 


13 


tak 


0  aw.iyJVoiu  Mr.  A..aiidotli 


ri'c  giit  he  construed  to 


right.s   to  wiiicii  thov  w 


er  indivi(hials.th(!])rivate 


ipon  tliis.    First,   Art'  tl 


ere  horn  !     T\\-(j  qnesti 


ons  arise 


hcrchy,  >/(■/(/<■/»,  pret'jmkd  ( 
ly,   Couhl  th«>  king  >/,  jt/n:  tal 


1'"   ii.ilivc  rights  or  in<hvi(hjal3 
)  he  taken  aw;i'.-'?    Second- 


To  t 


ke  awa\-  such  rijilits  ? 


xUi  o|   "tre.iting  with  t 


tl 


u'ln,  '  and 


11 


le  conntry  iiid.'pendentlv  of  the  !• 


lev  lioldni 


g 


a  ].o])id;ir  nianiK  r.  iiml  witli 


iCiil  curinnstaiices. 


<nig.     IS  .speaking  in 
iMit  sudirieiit  regard  to  jnrid- 


he  allowed  by  l.iw  to  de| 


Liiy  inierenee  oT  th;it 


soit  will  not 


Ins 


'live  a  in;in,  living  jjeaeeahly  ii 


:onse  in  New  llanipdiir.  .  n|  his  Hritisli  n<rhts   tl 


at 


I'o  was  horn  to,  and  that  are  personal  to  hini.  (nan.clv 
wl.H^h  ho  can  e.rry  al.nut  with  hin,,  and  which  do  not 
(lepcn.l   on    loealit  s  . )  nu-relv    heeanse  sunie   daring  men 


Ml    loealits  .)  nier.'lv    I 
iive  forced  the  king  (..  allow  the  .^tales  of  New  H; 


sn 


ir.-   t 


imn- 


<'  gnvern    hiin,    without    eniov 


right  of  appeal 


ing  anv  lonirer  ll 


lo 


'ic  Kini 


1 


low  this,  I 


ii\,  the 


aw  wdl  not  al 


H'caii.-e 


not   he   tak  'u   a\\a\   I 


pcixmal  ri-ht^of  |{riti>h  sui.jects  can- 


must 


'"'"    nndtiludes    in    a    lumi,  •   tl 


oe  •rscusseil    m 


must   he 


c\-er\     individual  eax 


th 


seven 


,|ii<lgnient  .111(1  exeeuli.in 


and  tlier< 
igain-t  everv 


Jicrson.     I\\en  the  art  nf  tl 


le  M 


II  national  act.  .and  relal 
:ict  ;  u  hcii  he  .uknowli' 
lilKpiishes  |i„.  go\eininrii|  ,,r  ih 


iij  in  thi>  instance  thou.rh 


iiig  to  iinllion<,  is  lail 
il-v.  th 


a   persi    i;i 


I'lii    1'  lee  Mate<.  and    re- 

cui,  he  iiet-i  oni\  lor  him- 

sii("(--o,.     and  aerordin-lv  th<>refo, 

I  iplcs   of   the  Law.    ht> 


self,  his   hi  iis,  ,'in<| 

iiiid    agreeably  with  the    true  pnn 

'il'ine  is  honndand  ihe  sovcroigntv  of  those  .St,,t. 


cease?* 


to 


ic  iih 


Ihil 


Wl;ei<'  IS  til, 


per  -oii.ii  act  of  a|,\    \ 


ineri' 


can  reliiKpnsliirii:  his   own  rights'    or  if  tl 


lere  wa.s 


nuy 


Vot 


OPINIONS    OF    EMINENT    LAWYERS. 


such  proceeding,  in  fact,  shew  nie  the  authority  in  hiw 
that  recognizes  any  such  principle,  as  that  a  natural- 
born  British  subject  can  divest  liiinself  of  his  native 
character:  tliere  is  no  sucb  authority;  and  there  is  the 
known  maxim  of  la-.v  against  it,  uotio  potest  cxinro  pa- 
ir iam. 

1  cannot,  tlu'i-cfore.   l)ring  mys..'lf  to  distinguish   the 


trcatv  with  America  from   the  ordinarv  case  of  ccssi 


to  a  foreiirn  sovere 


itrn 


in 


l)0tl 


1  cases. 


it  is  a  transact 


on 


ion 


between  the  two  sovereigns  in  which  the  inhabitants 
bear  no  part;  and  it  seems  <<'  me  a  departure  from  prin- 
ciple, to  say,  that  the  American  is  thereby  rendered  an 
alien,  while  the  inhabitant  of  Florida  is  allowed  to  be 
still  a.  British-boni  subject. 

Fourthly,  I  have  raisi'd  im)  question  (if  the  king's  au- 
thority to  make  tlie  Ameriian  treaty.  I  agree  with 
those  who  tiiink  he  might  iiavc  made  it  witiiout  the  act 
of  parliament ;  and  I  agree  also  with  those  wiio  tluMight 
the  treaty  fell  wilhin  the  authority  of  the  act.  I  am  sat- 
i^lird  with  the  treaty,  whether  with  or  without  the  act; 
but  I  contend,  tliat  luither  tlieact  nor  the  trcatv  had  in 


CDiiti'iiiplatiiin  to  makt 
ncitiici-  one  or  oi  her 


till'  Ameiic;ins  aliens  ;  and   that 


.f   tl 


ios(!   instruments  has.  in  Doiut 


()!"  law.  tlic  power  of  producing  such  an  cllcct.  1  raise 
noipicstion  upon  wliat  passed  in  ])ailiamciit  ;  if  the  par- 
liament approved  the  treaty,  tliey  left  us  to  draw  the 
inlcrciiccs  and  make  the  construction  that  shall  appear 
to  l»eh)llg  to  it 

Fiftl  Iv,  and  lasfi\  .  \ou  achiiit  tiiere  are  ditlicultics  in 
deciding  thiit  the  treaty  c\cm|)ted  t  he  .\iii''ricaiis  fi-oiii 
their  aUcgi.mce.  ;i:id  e\(diided  ilicm  I'rom  ihei;-  riizhtsa-J 
Britisli  subjects.'"  in  my  oiiinion,  ihisi'  dilhi  ult':  ■*  ire 
made  and  iiu  i Msed  liy  introtbicnig  plira«-es  and    rai'^mg 


or    ••HE  Law  ok  na 


construrtinns  upon  them, 
proceeding  and  adi 


TioNs.  737 

without    lookinc,'  to   the   real 


lerins^  laithfully  to  fho  lettorof  it. 
exeiin 


^ou  tall<  hereof  exempting   the  Americans  f 
allegianee  :   Why  make  a  question  of  r 
the  king   does  not   chiim  it?  And    wh 


rum    their 


alles 


fan  he  huilton  the  affirmat 


glance,   wlien 
at   consequences 


ive  o 


tion  I     What 


if  li 


IS  a  suoject's  allegianc 


i"  iiegjitive  of  tin's  q 


ues- 


0   resides   in   America,  althou-h    1 


'I!  wortli  to  the  king, 


native  of  London?  !t  is  worth  notl 
loine,    Avhat  docs  the  1 


le  i^ 


''O/ia 


p'Jp 


iuses  to  come  I 


ling.     And  if  ho  ro- 


(IK 


1  the 


i\v 


ay 


II 


pfirhamentdo  in  a  like  on 


and 


what 


so. 


I'liry    VIII.  0.  4.*?     All 


in  Stat.    14   and  15 


with  the  treat' 


All 


ogia.ice    lias    nothing   to   do 


national  and  territorial.     The  t 


•'glance    Is  porson,-,!  ;  the  treaty  is 


metes,  -md    it-  l.ound 


rcaty    regulates  Innd,  its 


■^ :  and    the    "■< 


treaty  leaves  and  transfers    to  others,  fl 
•■"initry  ;  the    person^    ;,n.l  1  heir  all 


vernmont  of  it  the 
le    States  of  the 


I  fleet 


ed 


Alio 


egiance  remain    un- 


><i»nal ;   tlie.se  mav.and  do  oft 


:\giani;e  is  general  or  special,  local 


or  ])er- 


in  t 


Americans? 


en,  in  facf,  consist  toeetl 


ue  same  person;  ^vhy   not,  then,   in  tl 


I  tret  tier 


le    instance 


It  is  for  want  ofnttending  to  if 
idlegiance  is  suhject,  that  so 


pedient  which  you  he 


is  modification  to  which 
pors(„is    started  tli;»  e\- 


o  contain  much  more  ditlicult 


re  mention,  iiiid  which 


meant  to  cure.      Y 


y  in  It  than  the 


so<Mns  to  me 
one  it  was 


,«ii( 


•h  A 


•'"   iigree  with    those  who  think   that 


mencansas  "alter  a  reasonnhle  f 


election,  suhseqnont    to   the    ratilinitiun   of  tl 


iiiie  allowed  fi 


or 


settled  themseiv* 


there,  hecar 


«sin    America,  and  chose  theird 


trenty, 
"micile 


10  t'xempted   Iroiii   their  all 


■hided  from  their  rights  as  British  suh 


ogiaiice 
ieots.'' 


ami  ex- 


'J-1 


'Vid. 


aiit   p».  706. 


73b 


OPINIONS    OF    EMINENT    LAWYERS. 


This  oxpodient  of  a  "reasonable  time,"  and  "a  domi- 
cllo,"  for  making  a  distinction  betv»'oon  one  American 
and  jMiother,  seems  to  me  to  be  a  greater  depavtnre  from 
principle,  than  any  of  'die  otlier  anomalies  that  I  have 
observed  in  their  argnment.  Tliere  are,  I  admit,  legal 
considerations  that  depend  upon  a  man's  local  (diaracter, 
whi'.'h  niiiy  l;e  clianged  by  change  of  rcsid(>nco,  and 
IhtMefore  must  be  ascri})ed  to  his  own  act  andclioicc. — 
But  those  are  in  cnses  of  such  a  character  as  is  capaMe 
of  being  actpiirod,  ami,  as  it  is  ac(piired,  so  it  niiiv  be 
lost,  l)y  his  own  act  ;  such  is  a  man's  local  nnd  nutioual 
character.  But  the  character  of  natural  suliject,  which 
a  man  is  born  to,  and  to  which  is  applieti  tlio  maxim, 
??( )uo  vobixt  (.riicrr  patrinm  ;  to  lay  it  down  as  a  ])osition 
ol'  law,  that  it  is  in  a  man's  own  choice  to  deeidt>wiietli- 
er  he  will  put  otVthis  character  or  retain  it.  and  that 
his  continuing  his  native  character  depends  u[)()n  aUer- 
ing  his  domicile  ;  this  is,  surely,  one  of  the  most  sirigu- 
lar  noselties  that  ever  was  attempted  in  tlie  face  of  an 
acknowledged  jirinciple  to  the  contrary.  For  whicli 
|)rinci|ile  I  unist  again  refer  to  ("alvin's  ease,  the 
whole  doctrine  and  result  of  which  is,  that  the  per- 
sonal lights  e,l'  a  subject  to  which  he  was  born,  re- 
main iliiougli  life.  .111(1  tlirongh  all  eircumstances,  uii- 
cbaiigcd  and  iiulelilile  ;  and  that  allegiance,  and  n.itive 
rights  aii.-e  wholly  from  Itirlh,  md  do  not  drjieud  on 
actual  local  sovereignty  lor  their  continuance. 

Such  a  device  as  this  is  n(>t  interpreting  the  l.iw,  hut 
making  it.  A  temporizing  scheme,  reducc(l  t<t  an  act  of 
|>ailiau.eiit,  for  settling  this  national  (jucstion,  luighl 
very  well  he  so  niodelleil  :  it  wo\dd  he  a  half  nieasuie 
t'.iai  (ii'ohiibly  would  be  ihoii^ht  rea.-onaiiie  eiioniih  ; 
hut  this  ver}'  character  of  it  is  sulliciiMit  to    discredit  it 


:!I''    THE    LAW    OF    NATIONS. 


73'J 


as  a  piece  of  juridical  reasoning:  it  is  void  of  all  r^toadl- 
ness  of  prin.;iple ;  it  has  not  even  in  it  the  consistency 
of  the  former  arguments  and  conclusions,  that '•  relin- 
(luishing  the  sovereicrnty,"  that  "acknowledging  the 
states  to  he  free,"  &c.  &c.  implied  that  there  was  an 
o.id  of  alleginnce  and  of  British  rights.  The  device 
was,  I  oclieve,  contrived  hy  tho.se  who  found  thev  could 
not  maintain  the  ahove  bold  couclusions,  in  op'",ositiou 
to  acknowledged  principles  of  law  ;  and,  desin)us  of 
doing  something,  they  were  content  to  lower  their  no- 
tions to  a  meciium  between  the  two,  which  would  sound, 
as  they  thought,  rea.sonable  in  the  effect  of  it,  however 
unsupported  it  might  be  In  p:-inciple. 

So  iiuich  for  this  half  measure  of  '■reasona])le  time," 
and  "domicile,"  which  1  have  had  occasion  before  to  re- 
probate. I  h„pe  the  difiiculties  in  point  of  law,  with 
which  this  arbitrary  notion  i  pregnant,  will  ho  av.^ded  : 
if  s..,  the  other  dilliculties  in  point  of  liict,  whi.-h  vou 
mention,  will  be  escaped,  namely,  the  necessity  ofen- 
•  piiriug  in  e\,'ry  particular  claimant's  case,  wh.'u  and 
liow  he  w;is  domiciliated  in  America,  or  in  (bis  king- 
dom. 

llpnn  the  whole  [  .see  nothing  to  distingui.sli,  iu  a  le- 
g:ii  view,  tbec.)nditi(.n  of  Americans  from  that  of  other 
JJrilisb  sul.jccts  re.si.iingiii  a  ce.ird  countix;  nothing 
'I'l'ic  li\  the  king,  notbmg  by  parb;i  nicnt,  notbliig  l)v 
(heui.seivcs  lud  it  ..e.-ms  to  mr,  tin-  person  in  .pi.-tion 
comh.g  to  tliis  couutry  is  .still  mtitled  to  tbe  privileges 
of  a  natural-born  sul'ject. 
Jan.  17,  lyO'J. 

Jainuini  1\,    bS(l|). 
\n  authority    is  (piote.l  for    the    notion  of  "  optional 
ilouiicilo."     U  i.s  said  that    'Jhief  liaron  Evre   h,.<  been 


l^i 


740 


OPINIONS    OF    EMINENT    LAV/YERS. 


heard,  over  and  over,  to  lay  it  down,  that  Americans 
domicilod  in  the  1  nited  States  conld  not  be  deemed 
British  subjects,  so  as  to  navigate  a  British  ship.  There 
may  be  good  reason  i'or  sucli  on  opinion.  Tlie  Chief 
Baron  might  liave  considered  that,  under  the  order  (if 
council  for  carrying  on  the  American  trade,  (it  was  be- 
fore statute  37  Tieo.  111.  c.  07.)  American  ships  were 
to  be  navigated  by  subjects  of  the  United  States.  He 
m.ight  consider  domiciliation  as  the  best  evidence  of  be- 
ing an  American  subject,  it  might  appear  tt)  Uiiu  rea- 
sonable, that  such  persons  being  allowed  to  navigate 
American  ships,  as  American  subjects,  they  should  r.ui: 
be  recognized  occasionally  as  Briti.'jh  sul)jects,  when 
navigating  i\  British  ship.  Such  a  discrimination  might 
appear  lo  him  to  promote  the  principle  of  our  naviga- 
tion system:  as  no  ships  are  allowed  to  be  British-built, 
unless  built  in  the  king's  dominions  ;  it  might  seem  to 
him  an  appropriate  construction,  to  exclude  from  the. 
chariu'ter  of  British  mariners,  all  those  who  cho^e  to 
domiciliate  themselves  i'\  America^  then  become  a 
foreign  country. 

Be  it  so;  l)ut  e;in  they  report  to  us,  the  Chief  Baron 
ever  laid  it  down  tliat  ])er.sons  who  so  made  themselves 
Americans,  by  residing  in  the  T'liiti'd  Stiites.  might  not 
afterwards  be  deemed  IJiitish  sul)iect.-  and  British  ma- 
riners, liy  cliaiigiiig  t'  .'ir  doiiii(ul('  to  some'  piirt  of  the 
king's  dominions .'  I.  .here  jmiv  thing  in  tin;  jirinciple 
of  Ltoiiiirilialiiin,  which  will  enable  them  to  snv  tluit 
the  fust  choice  is  lliiid,  and  the  character  tlien-bv  ac- 
quired cannot  bi'  ]iiit  III!'?  Is  there  imt  as  much  edicacy 
in  a  sev(Mid,  a  third,  or  any  other  Mib.seipient  choice  of 
domicile  7  And  <lo  n.)t  such  [)ersuii>  become /'///cs  (juotir.t 
successively  British  or  American  f  Ail  if  not,  why  not  / 


OP    THE    LAW    OF 


NATIONS. 


If  their  notion  is   grounded 


74  i 


should  ho  abl 


on  any    principle,    they 


doi 


nici 


le 


e  to  explain  to  us  why    the  llrst    choice  of 


precludes  the    advantage  to  be   d 


any  subsecpient  choice. 


erived    from 


Such  are  the  queries  that  may    he  ])ut  or,    th 


of  exchequer  law,  confined    onlV    to  tl 


case  of  naviirat 


10 


tl 
the 


ion  and  of  mar 


IS  piece 
le  very    i)eculiai 
iner.s.  There  .still  remains 
a  construction  on 


al 


principal  query,  why  .-hould  such 
iVivigation  act,  supported  as  it  is  there  li 
circumstances  of  the  c 


y  th 


0  s 


peci- 


ase,    be  adopted,    and  made  to 


govern  in  the  general  question  of  natural-born  subj 


where  there  is  notl 


ect, 


of  it    fit 
resid 


or 


ence,    teiuijorarv 
part  of  the  considorat 


»ing  similar  to  make  the  application 
colorable  ?   .   Certainly    domiciliation,    or 

never    made    a 


lorn 


■subject;   but  simply  th 


or    permanent, 
ion  whether  a  person 


is  a  natural- 


I    was 


he  was  born    within  the  king's  all 


th 


e  question,  whether 


if  d 


om 


icihation  weighs  any  thing,  the   cl 


cgiance '?     H 


case  is  resident  here 
dom  fii.s    future    residence 


lid  prof 


owever. 


aiinant  in  this 


esses  K 


)  make  this  king- 
IV r haps  the    Chief  Baron 


upon  a  hah: a^^  carpus,  would,  in  tl 

ant,  have  deemed  his  present  residence  and 


10  case  of  this  cl 


aim- 


nation  declared  t 


cient  choice  of  d 


o  reside    here  in  fht 


hisdetermi- 
uro,  to    1)0  a  sufTi- 


omicile  witliiii  tliepi'in.Mple  of  1 


Chequer  decision;  perhaps  he  might 
a:;  standiug  on   difl'erent 
case,  and  to  be  deeideil 


lis  ex- 


oiisider    this  case 


loiiiid 


Irniii 


fht 


exel 


liequer 


regard  to  doinic-iliat 


«»n   general  principles,    without 


ion. 


W 


c  are  so  uiiinfor 


Chief  IJa 


ron 


ined  as  to  the    ext<.iit    of  what  the 


it  seems  to  afford  no  safe 


1.^  suppo.sed  to  have  ruled  at 


Jan 


Jsno. 


ground  of  reason 


ti/\iprius 
inir. 


that 


March  22,  1809. 


f 


742 


OPINIONS    OF    EMINENT    LAW  f ERS. 


I  have  boon  dosircd,  hy  a  >;rea*  lawyor,  to  look  at  tho 
statute  (/c  i)icro.[(itira  ret/it^,  ch.  12.  (/e  fern's  JVo'iikih- 
nornin.  1  s'ljjposo,  he  inoant  this  slioiiM  prove  to  me 
that  on  King  John  losing-  Norniamly,  tho  Normans  ht- 
caine  tlu  rol>y  aliens,  and  therefore  the  lands  holden  hy 
them  ill  Kngland  csoheated  to  the  king  ;  hut  the  stntute 
does  not  itnport  this,  nor  is  it  so  understood  by  Staun- 
forde.  On  the  contrary,  Staun'orde  luiderstands  that 
the  N')rmans  still  continued  English  subjects,  and  were 
ad  ti</(  in  fi/i'itix(jiii'  rri^i.w  The  statute  expressly  >pcaks 
ol'  those  who  were  iion.  (id  iithna  ?vv/'V  a))<jJ.ii',  which 
must  1)0  sucli  as  were  born  at"' or  the  severance  oC  llio 
two  countries  ;  and  the  desig.i  oC  the  statute  is  to  lis; 
that  the  o-:(diea(  ,  in  the  case  oi'  such  j)  t-\liu(f/\  accrued 
to  the  kiniiaiid  not  to  tho  lord  ;  and  that  tho  kirn;-  was 


hold 


on  o 


r  ti 


10  lord 


iiV 


the 


;aine 


to  grant  them  to 
servici'S  as  Ixd'oro. 

This  cl;a[  jr.  tiiorol'oro,  ol'  the  statute  d :  prrroij'if'iva 
re<j'h-t  is  an  e\:[)ross  authority,  that  the  sovoranco  (*t' Nor- 
mandy I'rom  the  Kiiglish  crc)wn  did  not  make  tho  in- 
habitants there  aliens,  though  their  chlldien,  born  after 
tl 


10  sovoraui- 


w  TO  aliens. 


This  autliority  Iiocoiiu's  also  a-",  answer  to  another 
])oint  niaiiitainod  by  the  same  groat  lawyor  ;  ho  ^-oos 
beyond  the  rosl  that  I  have  had  to  contoiiil  with,  except 
the  civilian,  and  Ik 
liabitants  of  a  oo(lo 


hnld.. 


with  tho  civilian,  that  the  in- 


(•o|()ii\    hocoiuo 


tl 


lorohv     uions. — 


Yet  in  this  I  cannot  bi:t  allow  there  is  consistency;  for 
the  principlo  ap[)oars  to  me  to  be  tho  same  :  those  who  call 
the  Amoric:ins  aliens,  ought  to  consider  the  iiihaliitants 
of  Florida.  c(m1o(1  at  the  same    time,  in  the  same    light, 


am 


1  II 


loso  who    oo 


iisidor  the    inhabitants  ui  Florida 


as 


uot   deprived  of  their    personal    right.-i  of  Kuglishiueu, 


ought  to  admit  the  A 
horn  snbject.s. 


OF    THE    LAW 

oric 


OF    NATIONS. 


743 


IIK 


;in  cl 


Perh 


iip.^  the  ohjoctors  have  nov 


sons  to  wliDiniiaturah'/.ation  and  dcnizat 


In  hi)tl 


1  cases,  in  tlio  act  of  pari 


claim  to  continue  natural- 
Jlar.  22,  1800. 

MnrcJi  24,   1800. 
cr  mnsiderod  the  pcr- 
ion  arc  "-ranted. 


ont,  the  jiartv  is  allejrcd   to    be  I 
ill 


parliament,  and  in   the  pat- 


allojriunee,  and  in  npplyinir  for  either,   he  must 


the 
til 


the 


line  in  hi     petition;  bnt    an  Amer 

th 


)orn    out   of  the    king's 
alle're 


is  with  truth.     What    then  is  to  b 


loan    cannot  do 


l)ecul 


inr  circumstances  and  sitiiat 


>e  tJie  conehisKm  on 


ion  o 


ftl 


alien?     Is  he  to  be    deemed  an  alien  bevond 


lis  Sll 


aliens,  that 


not   siiseeptible  of  deni/.ati 
ordinary  course,  because  1 


irredeemablv    such?       A 


ppnsed 
all  other 


ssu 


! redly  i 


le    IS 


the  description   which  ali 


i)u  or    naturalization  in  the 
e  cannot  bring  himself  within 


iue   makes    hin-    the   object   of 


such  lavor;  (;r  may  we  conclude    that,  not    1 


detect  wl 


lavin 


read 


iich  IS  to  besuj)plie(l  by   such 
y  in  i)o.>^session  of  the  character  to  1 


g  the 


it ;  in  other    words,  1 
born  subject  1 


ant,    he  is    al- 
)e  conferred  hv 


c    IS  not  ail    alien,  but 


a   natural- 


The  latti 


r  api)ears  to  me  the  just    coiul 


shall  accordingly  say  with  confidence  thattl 


thoritv  of  theloi-d-ch 


usion ;  and  I 
icre  is  the  au- 


of  tli(^  two  1 


lancellur  in  cases  of  denization 


lOU 


-es  of  parliament  in  v.v. 


•es  ol 


for  the    proposition    tliat    birtli    out  of  the  ! 
:"i<'«'  is  tlh  only  circumstance  wluVhc.nstitut 


naturalization. 


inn- 


all 


W 


e  inav  he  si 


ue  such  forms  would  not  have  I 


egi- 


es  an  ahem 


and  constantly  acted  u[)on,    il'  tl 


ne  rei 


)eeii  settled 
ley  Were    not  known  to 


li'i'^'ll'y  tlle^enerallawof  the    lan.l.      Indeed,  it 

iuition  of  alien    laid  down 
elementary    or  practi(-ul:  the 


not  lung  more  than  the  d,.t 


in  all  ;l  e  books,  wl 


letli 


er 


'"dowing  e.xar-iples  are  xiillicient  : 


.^ 


744 


OPINIONS    OF    EMINENT    LAWYERS. 


Natural-born  subjects,  aro  such  as  are  born  within  the 
dominion  of  the  crown  of  England  ;  that  is,  within  the 
ligeance,  or,  as  it  is  generally  called,  the  allegiance  of 
the  king  ;  and  aliens,  such  as  arc  bornoutof  ■  . — [Black- 
stone,  1.  book,  ch.  10.] 

An  alien  is  one,  wIidIs  l)orn  out  of  the  ligeance  of  the 
king. — [Conivn's  Di.^est.  article,  alien.] 

An  alien,  is  one  born  ia  a  strange  country, — [Bacon's 
Abridgment,  article,  alien.] 

And  thus   I  conlade    this  discussion,  as  I  began  it ; 
relying  upon   established  and   known   positions  of  law 
for  maintaining  juridical  truth  against   hypothesis  and 
the  speculations  of  political  reasoning. 
March.  24,  1809. 

(o.)  ^1  di'icourse  h>j  Mr.  J.  l)e  ^Vitt,  co.icerniiuj  Sur- 
inam. 

The  underniMned  counsellor,  the  pensioner  of  Holland, 
having  understood  by  the  ambassador  Temple,  that  the 
King  of  Great  Britain,  his  master,  had  not  been  entirely 
satisfied  with  the  answer  of  the  states-general  of  the 
United  provinces,  given  to  his  Majesty,  the  Gth  of  June 
last,  upon  the  account  of  the  business  of  Surinam,  be 
lieved  it  his  dut}'  to  acquaint  the  said  ambassador,  that 
it  is  evident  and  notorious: — ■ 

1.  That  the  colony  of  Surinam  is  possessed  by  their 
high  mightinesses,  in  their  proper  light,  v/ith  all  tl;e 
rights,  and  a  power  unliinited  of  superiority  ai\d  sove- 
reignty, established  and  confirmed  by  these  words,  in- 
serted in  the  third  article  of  the  treaty  of  peace,  "c///« 
r>lenorio  jure  ■■iiimnii  imperii,  proprietatiii,  ct  posses-si  on- 
is;''  and  by  consequence,  that  all  the  inhabitants  of  the 
sr.me  colony  are  subjects  of  their  high  mightinesses,  pri* 
Vatcly,  a.s  to  the  exclusion  of  all  others. 


OF    THE    LAW    OF    NATIONS. 


74.: 


2.  Ajso,  secondly,  that  by  v'.itue  of  the  capitulations 
wliich  are  found  to  liavo  been  made  between  the  sove- 
reign and  his  .subjects,  none  can  form  any  pretence,  but 
only  the  said  sovereign  and  the  said  subjects,  recipro- 
cally ;  nor  can  any  other,  no,  not  he  or  those  who  be- 
fore the  date  of  such  capitulations  miglit  have  been  sov- 
ereigns to  the  same  su))jects,  after  an  entire  cession  and 
confirmation  liy  i\  treaty  of  peace,  or  otherwise,  pretend 
any  right,  or  so  much  as  permit  himsel!'  to  makt'  c(  m- 
plaiut  of  the  breach  or  contravention  of  the  said  capitu- 
lations: sf)  far  are  they  from  a  power  of  demanding  a 
r'.'dress  (.}•  any  reparation  to  bo  made  to  tliem  for  the 
same. 

3.  That  what  is  already  said  i,-.  not  oidy  conformable 
to  the  disposition  of  common  right,  but  also  to  the  judg- 
ment and  practice  of  all  kings,  states,  and  prince  ;.  For 
example,  thei.-  high  mightinesses  have,  by  their  arms, 
r.iiide  a  conquest  upon  the  king  of  Spain,  upon  the  towns 
of  Bois  le  Due,  xMaestricht,  Breda.  &c.  and  yet  accpiirod 
not  possession  of  them,  but  upon  hirge  and  advantageous 
capitulations;  and,  nevertheless,  after  the  full  and  entire 
acquisition  of  the  propriety  of  the  said  towns  nnd  places 
by  the  trea.y  of  peace,  when  any  question  was  made 
about  the  explication  of  the  said  ca])itulatior..^,  or  ctmi- 
plaint  made  of  waut  of  execution,  the  said  lord,  the  kin"- 
of  Spain,  never  undertook  (as  indeetl  he  could  not)  to 
urge  their  high  mightinessps,  or  to  speak  to  them  about 
I  he  cxccutiou  of  their  capitulations. 

1.  The  king  of  France  possesses  in  like  manner  Lilk", 
Doway,  Touriniy,  &c. ;  and  yet.  all  the  v.oijd  agrees,  the 
king  of  Spain  has  notlung  to  do,  since  his  entire  cession 
of  ;ho^o  places  to  the  crown  of  France,  by  the  treaty  of 

peace  concluded  lately  at  Aix   la   (Jhapelle,  to   interest 
95 


I  w. 


746 


OPINIONS    OF    EMINENT    LAWYERS. 


himself  for  the  execution  or  not  execution  of  the  caplt- 
ulatioDs  which  were  in.i(k>  upon  their  surrender,  and 
hath  yet  less  to  do,  to  make  air'  quarrel  with  France 
upini  this  account.  But,  in  case  the  inliahituuts  of  Ma- 
estricht,  IJois  le  Due,  Breda,  &c.  as  also  those  of  Lille, 
Doway, '^()urua^•,  iscc.  judge  the  ca})ituJati' iis  are  broken, 
all  they  can  do  is  to  carry  their  coinplaints  and  peti- 
tions to  their  sovereigns,  viz:  to  their  liigh  iiiightines.-x's, 
and  to  the  king  of  France,  respectively;  otherwise,  tliuy 
would  render  themselves  notoriously  guilty  of  tlie  crime 
of  rebellion,  if,  in  this  case,  they  should  address  them- 
selves to  the  king  of  Spain,  and  desire  his  succor  and 
intercession,  and  highly  offend  the  majesty  of  their  law- 
ful and  only  sovereign;  as  also  the  king  of  Spain  would, 
on  his  side,  notoriouslv  violate  the  treaties  made  by  him, 
and  the  law  ol' nations,  should  he  interest  himself  there- 
in, altliough  he  should  do  it  upon  his  own  proper  motion 
and  without  being  required  i.o  do  it;  since  in  so  doing 
he  would  still  attribute  to  himself  some  right  t)f  superi- 
ority, or  at  least  of  protection  over  those  whieh  have 
quitted,  his  ]irotection  and  subjr'ction;  as  to  what  con- 
cerns the  possession,  by  the  right  of  war,  and  as  to  what 
concerns  the  propriety,  ))y  the  said  treaties  oi' peace. 

o.  It  i  without  all  dispute,  that  their  high  mighti- 
nesses are  obliged,  by  virtue  of  the  said  capitulations,  to 
let  the  inhabitants  of  Maestricht,  Bois  le  Due.  and  Bre- 
da, iJicc.  enjoy  the  free  })owi'r  to  transport  themselves 
fidiii  tluMK c,  without  any  h-.i-.'-siitce,  into  what  ot!;-'r 
place    they   pb'ase,   as  als  i        away    meir  goods, 

r'oveables,  and  to  continue  the  propriety  and  possession 
of  their  immoveable  goods,  notwithstanding  their  re- 
move, or  else  to  sell  either  of  ihem  as  they  please. 

But  this,  notwith.jtaiiding,  if  their  high  mightinesses 


OK    TilE    LAW    OP    NATIONS. 


747 


think  (it  to  '".-r'ji.I  '-i^in,  or  to  hinder  one  or  other  of 
thern;  yet  doili  it  not  belonjif  to  the  king  of  Spain  to 
conii)hiin  of  it  to  their  high  ni  ghtinesses,  nor  toclenuind 
reparations  lur  it:  moreover,  his  niajestv,  by  so  (l.iiiio-^ 
wonld  notoriously  wrong  their  high  iniiihtinesscs.  But 
the  said  inhabitants  have  this  only  way  left  to  thtMn  to 
address  themselves  to  their  high  mightinesses,  us  to 
their  lawful  and  only  sovereign,  by  their  complaints  and 
petitions. 

G,  The  colony  of  the  New  Netherlands  has  been  like- 
wise  subjected  to  the  power  of  his  majesty  of  Great 
Britain,  with  a  very  large  capitulation,  and  it  is  proba- 
ble those  of  Cabo  Corco,  upon  their  surrender,  have  also 
made  some  stipulation.  Nevertheless,  their  high  mighti- 
nesses well  know  that  at  present,  since  the  conclusion  of 
the  treaty  of  Breda,  they  are  not-permitted  to  ente>-  in- 
to dispute  witli  the  king  of  Great  Britain  upon  the  ac- 
count of  the  capitulation  of  the  New  Netherlands,  or  ]>y 
virtue  thereof  to  demand  any  favor  for  tluse  who  wero" 
their  suljjects  before  the  said  capitulation;  l»ut  in  case 
those,  the  sf.id  formerly  subjects  lo  their  high  miirhti- 
ne.<ses,  an;l  at  present  subjects  to  the  .'^aid  lord,  the  king 
of  Great  Ih-itain,  find  that  they  have  been  formerh-.  or 
shall  be  for  tiie  future,  ill-treated,  contrary  to  their  ca- 
piiulatio!js,  they  have  and  shall  be  i)ermitted  to  have 
recourse  to  his  majesty,  who  is  now  tjieir  sovereign,  and 
to  demand  redress  from  him. 

7.  By  what  has  ]y'on  said,  it  is  hnprd  from  (lie  usual 
0(|ui(y  iu'd  jirudence  of  the  said  lord,  (be  kin-  of  Great 
Biitniii,  (hat  his  majes(y  may,  and  will  well  compre- 
hend, that  it  belongs  not  to  him.  nor  liatli  he  aii\'  ri^ht 
to  enter  into  any  dispute  with  their  high  miiihtinesscs 
upon  the  explication  and  obligation  of  the  capitulation 


748 


OPINIONS    or    EMINENT    LAWYERS. 


1? 


■vvltli  Surinam,  or  to  complain  of  any  pretended  want  of 
execution  thereof. 

8.  And  since  that  ino.st  kinj^j^,  princes,  and  states,  pos- 


sess cnuntries 


town 


and  phices  verv  considerable,  which 


had  fornMM'ly  other  soverei,t!;ns,  and  whicli  had  l)ec'n  siih- 
jected  hy  the  said  kiniis.  princes,  and  states,  either  vol- 
untarily, or  y>\  I'orce  of  arms,  under  certain  nirreeiueiits, 
conditions,  or  stipulations;  and  that  the  said  possession.^ 
have  hecn  since  '•ouiirnied  to  them  by  soleiini  treaties 
•  ■  with  the  said  lirst  sovereigns;  the  wholo  world 
Id  be  (li~;tnrbcd  and  turned  fii>side  down.ii'    the  said 


mad 


w  oil 


sovereigns  shdiild  still  I'oiin  their  ])retensiuns,  and  plead 
that    tbi'\   had  a  riulit  of  j)rotection  upon    their   former 


ubjccts.  to  obt.iin  from  them  liie  execution  ol    the  arti- 
siipulatiil  for    in  the  said   caiutulations  :   so  tliat  it 


clc 


cannot  be    jii-tiiic(l  in  this  (."oiitroversy,    what  is  held  to 
the  coiitraiw   or  wh;it  is  cNccpted    uixm  what  liiis   lii'cn 


bef. 


11  f 


appiicil,  \\y. 


that  ar  tli 


C   I'lKl   I 


>l  the 


11. 'ic    ( 


i|    till'   tira(\   ol'    Ibcda.  ucic 


<lcd  tl 


ninl  ar- 


K'sc  won  I 


ClIIJl  pi'or\i'^  III  liliiiiiiui  (jinii 


,li 


.\/u 


lit  /    />/■<>  I  I  nil    I  lllll'SI. 


I 


'I' 


Ot^ciipdi't  rnf  <  t  y<"sv 
somethinLi'  more  I  li 


on< 


ol  the  t w 


r//7,  a~  il  bv  tbt'^c  words  was  meant 
II  tiie  extent  of  the  po-se^'-ioil,  which 
o  con:  laclors  ell'ectiiall"'  ii.id  upon  the  day 
there  iiieniioiicd  ,  oia<  if  it  iiiiubt  be  inaiiitained,  tiiat 
t-.lie  WMi'ils  liinited  al-o  ilic  power  ol  liie  po^sosois  tor 
the  fiilnre.  \s  liirli  i-;,  nevertnele.-is,  notoriously  eontrary 
to  llii'ii  true  Mii-e;  and  it  appears  yet  evi<leull_\  to  be 
so,  mion  wii.it  pas,>^ed  in  the  very  nejfoeiation  of  the 
peace;  for  Hineo  the  same  article  deterinine.s  very  clearly 
and  expre.ssly  concerning;  the  right  ol  the  po.ssos.sors  for 
the  fiitur*',  that  it  should  be  an  aliMilntr  and  iinbiiiited 
sovereignty  in  these  words,  'conventutn  ]})•;( tcna  ett,  ut 
utraqne  jam  cUsi'jnatarum  parlium,  cum  pknario  ju7'e 


or    THE    LAW    OF    NATIONS. 


r49 


■wmnn  imperii  propriefatio  e(  pomessionis,  omne9  ejns^ 
mo(h  ttrra-s,  imnht-s,  vrle.s,  munimenta,  Joca,  et  colon/as 
temat  tf  po.^9e<feat  inposternm,  quotqnot  dnrante  hoc  hel- 
lo. a>,t  auto  hoc  helium,  ullis  rePro  temponhm,  vi  et  ar- 
m,..  a>,t  qHoqiio  mo</o,  ah  altera  parte  ocaipavit  et  reti- 
nuit,"  one  cannot   heliovo,    that  the  said  words,  "earn 
prorm.«  in  modum,  c(y'."  do  overthrow  or  limit  the  right 
which  had  hotMi  ah-eady  acquired  and  fixed  by  the  words 
^^phnanu  jare  summl  impnii,  d-c.  r  hut,  forasmuch  as 
the  extent  of  the  posse.^^sion  had  been  comprized  so  gen- 
erally HI   the    words    ^^qootquot  durante  hnr  hrlln,  cCr  " 
MHO   that  the  i.arties  wore  agreed   among   themselves 
that  the  places  which  had  been  or  should  be  taken  after 
the  !;:  of  M, y  should  be  restored,  it  was  evidently  neccs- 
siiry  that  th(.  said  general  extent  of  possest^ions  should 
be    hunted  and   restrained,  by   another  more  particular 
clause,  only  to  such  posser  ,ons  as  it  should  appear  either 
I'"  <  V  had  the  said  il  Mny,  without  extending  them  any 
iM.thr,-.   ,„■  pretending   ly  virtue  of  the  said  treaty  any 
iiglif    luyoud    the    limir.   ..f    the   possessions    which    it 
should  aj.p.-ar  either  of  the  said    parties  had  the  said  ^ 
of  Mi,y,  wh;.h  is  th  -twhich  appears  to  be  expressed  by 
»b..  word.  th..re  added,   ".,/„,,  y,,,.-..,..  ,n   vwdam,  quo  eo 
dir  [;;  .\/nn  j.ro.riur.lap.si,  naapanrat  it  /km-sv,///."  where 
"  iiiMV  h..    particularly  observe.!,   that  the  w.u-.ls.    ■cum 
prorm.^  ,n  n,odmn,  qm  eo  die  iU  Mai,,  pro.rim,    ^la/..i,  oc- 
mparrrat:    cannot  any  way  be    applied  to  auv  right  or 
to  any  conditions,  by  virtue  where  of  either  one  or  the 
other  should  that  day  posses.,  but  .mly  to  the  nmuuer  or 
extent  or  to  the  limit,  of  the  occupation;   that  is  to  say, 
what  countries,  or  what  places,   ami  how  far    it  iv.pcar- 

<^'^'  ""♦  "•  tl>c  other  party  should  have  m  his  power, 

the  mild  ,;  ..(•  May.     F..r  to  give  any  other  sense  to   th«I 


750 


OPINIONS    OF    EMINENT    LAW  VERS. 


said  words,  it  were  necessary  to  omit  wholly  the  word 
"ucciiparcriif;'  and  instead  of  the  words,  "rum  prorsuH 
in  modiim,"  to  have  put  in,  -to  iiror.<:ii>^  jitn: ,'■  and  yet, 
even  this  way,  we  should  meet  with  a  contradiction  and 
notorious  absurdity,  viz:  that  on  one  ride  countries  and 
places  should  I)e  given  up  with  a  right  of  absolute  ami 
unlimited  sovereignty,  and  on  the  other  side,  a.d  as  to 
th(  une  rights,  as  the  possessors  had  possessed  theui  in 
the  i;  of  May;  fi>r,  if  l»y  tiic  latter  words  was  iniderstood 
any  tiling  less  than  a  right  of  an  unlimited  sovereignty, 
they  must  necessarily  fall  into  a  contradiction  and  mani- 
fest absurdity. 

But  all  this  will  iippear  with  nuudi  greater  evidence 
if  we  well  cimsider  what  passed  at  IJreda  during  the  ne- 
gociationof  the  pea. e,  and  paitieulai  ly  that  when  it  was 
insisted  upon,  on  the  behalf  of  their  high  migiilinesses, 
for  all  that  had  been  taken  by  either  of  tlie  paiiiv,-,  lui- 
til  the  knowledge  of  the  i)ea.'e  should  arrive  al  all  the 
territories  of  botii  parties,  either  by  ])roclamaliou,  or 
otlierwise,  or  at  least,  till  tlie  day  of  signing  the  said 
treat\  ;  tiny  ordered  their  intention  to  be  t'\i>ressed, 
and  to  be  i>ut  in  the  hands  of  the  me(liators  the  .".nth  of 
Ma\.  in  the  ■^anx'  \car,  lUii",  in  ili">e  words,  ■  Conven-< 
tiDii  ])rit(  i-i'i  t-yt.  iif  iiln/'jiit  jitiii  ilisi.iiniiiinnii  jutriiinn, 
I'll), I  I'liiiir'ui  jiirt  .suuiihi  i//i/>i  rii,  j)i'<>/>rh  ''/ft^\  ,r  jni><s,.s- 
SlOni'S^OtniKii  (jiistniiJi  t'l-ni-'^,  inNiihl'<.  in-/'<\.  m n m hk  iitii, 

loCU  et  Cofollid"  tHIOlt  a   lO-S-Snl(r(tt   III  />i,s/rUN,,  'Jlicfjiiot 

durante  hoc  /n/lo,  ant  ante  hoc  In-JImn  nlli-s  trtro  ttvipor- 
ilius,  vi  et  anniM,  ant  quoqno  mndo.  iil>  ,ilt,  m  j-nrte  (wcn- 
jjavit  el  retinnit,  cam  prorxnn  in  modmn,  ipio  en  po.ssidtf>it 
tunc  tenipori^,  cum  pr:i^eiiti  pacis  tri'ctatni  ^nUcriUtar," 
which  last  words  having  ii  relation  to  a  ti'ue  to  come, 
and  to  things  which  migiit  hai>[ien  alter  tlie  date  of  iho 


OF    THE    LAW    OP    NATI 


ONS. 


ol 


Pa 


.1 


proposit 
tation  oi 


ion,  could  not  contain  any  thincr  but  a  li 


si.uTiation  of  tl'.e 


m- 


they  should    he   found  at  the  d 


possessions,  in  such  state  as 


■Ay  of  the  signing  of  the 


treaty ;  an<l  so.  aocordi     •     ,  the  precedent  words,  which 


are  clear  and 


expres,- 


JS 


enjoy, .with  an   absolute  and   unlimited 


•sessors  shoidd  continue  to 


those 


'"untriesaud  places  which  he  had  in  1 


sovereignty,  all 


the  day  of  the  said 


sicuintr. 


But,  forasuuich  as  at  the  inst; 


bassador   tl 


lis  power  on 


nee  of  fh,.  English  ain- 


back   to  a  ti 


'c   s;nd    term  WHS   anticipated,   and    brought 


i:;  of  Mav,  w, 


said 

words,  "//,/„ 

•scril>ct,ur\    W( 


ine  I'ven  already  past. 


in  which  regard,  the 


(tinfti, 


IS  lu  the  end  agreed  to,  not  oulv   tl 


lese 


'>/vv,  vinn 


■re   cl 


I'lc'^rnti  ]i(ici<  tia^tntiii  su')- 


•s\ 


'fie  Mc 


langed,  to  put  in    the   1 


tui 


''"/>'-"''''"^^'/'VAsv,"and  the  w(.r(l 


"  'I  into  .h,-.t  „f  "/.Y>v.v,.A>,"  but  also  1 


ollowing  one.s 
'  y.Y).s'.v///(7/// " 


'aid   change,    the  said   cl 


)ecause,  by  the 


plicahle    to  a  t 


imc 


ause  reudered  the    business  ap- 


past,  and  aH'air^   ab-eadv  d 


OIU 


conse.p,entIy,    that  hcrcaH.r  it  n.ight  be   ihout^ht  th 


tiu 


aid   clan.' 


and, 


at 


ti( 


•'■  according  to  the  intentions  :>f  t! 


s,  nil 


;l'»  Im'  applird  to  th(>  rv-ht  a!id  to  tl 


le  par- 


hy  which  they  w 
•'oinitiy,  or  to  t; 
ly  and  oiii\-  t.'  th 


le  Co 


ndit 


ions 


ere  icikIci 


«'d  niastci-  of  siicli  a 


•'on 


.iiiir 


('  (ICCIl 


to  t; 


a(l<le( 


-ir 


I  ilic  hkc  iiatur( 
Jiatidii  aiiil  til  tl 


and 


H'  (-(ini 


no! 


qiiered 
proper- 


a,.ii)|Muit\ ,  t 


If    wor 


d 


l»\    wiiich  \vi 


luest  itself, 
■(),;■, 1 1  (fi-t  riit"  was 


airiiicd   nj' 


iiy  ntlicr    inter 


'■'"IIS  that  th..  Kn;li.h    p|..,,ip,,t 


l"'''\''nt.'d    all    that    cuild 

|'"''.lti(lli:    ;|S   it    is    ■a\<^ 


hr   iiii- 
)    noto 


alIrration<  o|  their  wm,] 

lo    ailtli'l|.;||,.   tl 


■  I'Mll    the     (iral 

rL'ij,'nty  of  the 


='"1  t'Tiii,    and  lint  to  tak 


•  •iitiaii.'s.  ill  causing  the 
'"light  hilt  only 


11  Ml  iiM  (ithcr  t 


y  \\  hhli    >iiniild  Innii 


t'   iHi,\   thing 


•!)-^oh;t( 


>\v 


|>(  IVv,. 


-or 


"""'••  th.M.n|„.,i,  and  whirl,  ua-  .Jrlnorcd 


propo-i(io|i    \vhi,h     ney 


111  writing  to 


t 


752 


OPINIONS    OF    EMINENT    LAWYKRS, 


aL 


the  plenipotentiaries  ot"  this  state  by  the  mediators  =n 
solemn  conference,  July  7,  1007,  not  c(mtaining  any 
tiling  from  whence  can  be  directly  or  indirectlj/  gather- 
ed any  other  sense.  The  formal  terms  of  the  said  pro- 
position are  these :  "  Oinncs  retjiones,  terra.,  insul/\  colo- 
nice,  civitdfe-'i,  oppida,  prasidia,  prcjnignncdti,  oUcranue 
munimenta  'j  t>-^  ah  alterutni  parte,  ante  2(J  dium  Mjutii 
</?!,;  J  prrsenti  1607  C(t})ta  sunt,  tt  cod -in  die  in  iUiit^  partis 
po'^seasioni  rctnunserunt,  penr.s  cos  vmnenut,  a  i/niljus'  sic 
captn  ct  posscssa  sunt,  omi  jl'mnio  jure  niinni  imperii, 
propriefatis,  ef  /rjssessioni'S,"  words  in  whicli  no  luiiliii'^ui- 
ty  at  all  is  to  be  found,  nor  any  othrr  thing  IVoiu  wlicnce 
can  be  Vaised  any  conj"ctiu-  that  the  intention  of  the 
said  English  ])lenipotentiaries  was  to  stipulate,  or  cause 
to  be  insji-tod  into  the  treaty  which  was  n  gociating, 
aiivthinr  whatsoever  which  miirht  derogate  from  the 
absolute  sovereignty,  or  to  a  privative  disposition  of  the 
possessors  of  the  countries  and  (olouics  whicli  one  of  tlie 
parties  gives  up  by  the  said  article.  So  also  notiiing 
past,  neither  Itefore  nor  since,  upon  this  subject,  between 
the  plenipotentiaries  of  either  side,  neither  l)y  word  of 
mouth  nor  v  riting,  which  can  jtersuade  us  tiiul  they 
had  th!.-.  intention  or  any  thing  near  it  ;  lieeause,  they 
onlv  bv  a  joint  agretMueiit,  lixed  the  ',|  of  .Niay,  the  term 
which  tin  Kngli-h  plenipotentiaries  demanded,  to  tlie 
2(ith  of  March,  and  th.  ,)h'nipntentiarie-  el'  tlu  ir  high 
mightin«'sses,  to  tiie  day  of  signing;  so.  that  in  tins  re- 
ppect,  nothing  was  capitulated  between  I'.nLdand  anl  thi^ 
}«tate,  that  was  extraordinary  u>>v  .>nt  of  the  road  whidi 
was  usually  followed  by  kings  i)rin<'cs,  and  >tates  ;  but 
^.very  oiu-  was  left  !o  an  absolnt(>  iuid  privativ.'  disposi- 
tion, ac'-ording  to  the  order  and  cu-tMni,  upon  all  nlaces 
♦•ompiered  r.nd   given  n;:,   a>  al<o  '  dl  llieir   inhabit- 

aiii». 


OF    THE    LAW    OF    NATIONS. 


753 


And  thus,  in  rejiard  of  tl 


liave  been    made,  or   tl 


0  capitulations  which  niicht 


agreed  to  upon  their  conquest,  tl 


le  conditions    Avhicli  have    Ijcen 


ed,  nor  can  *liey  so*  much  as  pretend  t 


lev  cannot  have  acquir- 


but 


only  b 


any  right  by  it, 


.subjects  t. 


-King  reiuousti-ances   and  petiti 


ons 


as  of 


of  ( 


ueh     sovereign,  as  without    doubt   the  kin< 


ireat  Britain  and  1 


II 


stood  it,  if  their  hiirl 

in 


s   ministers    would  bive    under- 


1  uiightinesses   hn  1  ciideav 


oured   to 


raise  diflerei.'HVs  with  his  uiajestv 


)'il 


and  oxeeution  of  tli 


capitulations,  uiiule  u 


(he  explication 


quest  of  New  IJelgia,  and  the  t. 
with  the  forts  and  places  tl 


)on   the  con- 


iwii  (if  Ne\v  Amsterdam, 


For  th 


U'reon  di  pendiiiir. 


eso  reasons,  we  expect  it  from  the  most  renow 


cderpiity(d"    his    majesty,    thr.t  h<>  will   1, 
an  efVect  of  the  discretion,    civilitv 


U" 


upon  it  as 


an. 


♦heir  high  mightinesses,  what  ^oevi-r  tli.'\-  ) 


Iru 


ndsl 


iin   ot 


to  time,  disputed  witli  his  ministt, 
answer,  whicii   hath    b-cu  al 
the  exjioundliig  and 
Suriu.'im,  as  tlicy  will    aL 
known  to  his  r.u: jest 


ihove 


exeiMitioii  of 


lave,  from  time 
s,  and  deidared  in  the 
poi<(')i  (if  eon("ernimiC 
llio    capitiilatidiis   of 


■o    he  alwa\s  read\ 


lo    make 


it 


y  and  his  m:iii>t,>is,  that    thev  will 


not  be  less  diligent  in  the  punctual   observ.ition  and 


ecution  of  all  tl 


ex- 


leii-  ])romises  to  their  own    siil 


ihey  shall  be  ,>[  tliat  t. 
bv  tl 


licet- 


than 


whicli  thc\- 


111-  foniiallv  obliged 


le  s(  lemn 


iti 


OS  nia((' 


Witll    (lllicl- 


niK 


I  -);it( 


■  111; 


IU'IIIC(V« 


li(\    alsd  |)(i 


pc  it,  fidiii  ill,. 


I'd  ('(piity  aiyl    di-,'retioii  i<\    b 
not  look  upon  theseexplaiiat 


-o  iiiMili  iciiown- 


'ii'ii''-t.\  .    Ili.it    he    will 
ions  and  dcclaniliniiv  dthcr- 


wise  than  as  they  are  bciv  ^aid  :   and,  that  neither  from 


licuce 


u    r  lioiii  .my  precedent  trcat\  ,  li(.  will  d 


i'oii<(Mpieiice.  a>  tlic\  uave  1 


iiin  an\  ri'.iiil  cr 


raw  any 


lion  .'iirainst 


hell 


iiLMi  uiiuhtiiu'sse 


aiK 


■^loiier  ol 


II 


I'ouusellor 


|)en- 


oilaiiil.  ( 


-lie 


ytj 


;hc  >aid   aiiiba.-ador  Temple, 


hi 
iil 


I 


751  oriMOXs  OF  eminent  lawyers. 

tliat  he  Avonld  iiiiiturcly  cnnsiclor  tlio  abovesaid,  accord- 
ina;  to  his  ncoustomod  equity  and  that  he  woidd  so  well 
hifonn  the  king  of  Great  Britain,  his  master,  that  here- 
aftei-  thi  '  may  not  be  a!iy  further  diflerence  upon  this 
point,  between  his  majesty  and  their  high  mightinesses. 
Given  at  the  Hague, 

Jtdij  2,  HW.).  Jean  De  Witt. 

An  austccr  to  Jfr.  de  MlU's  paper,   conci.iniug   Suri- 
nam, 

My  Lord ; 
As  there  is  great  maturcness  in  the  discourse  of  my 
lord  de  Witt,  and  niuc]i  strength  of  argument  in  what 
he  hath  delivered  in  that  paper,  so  the  main  of  its  force 
doth  seem  partly  to  lie  in  the  e/]ual  right  granted  by 
him  to  hi<  majesty,  in  tli(>  country  of  Manhatous,  as  is 
desireil  for  Surinam,  and  partly  in  his  allegation  of  mat- 
ter of  fa'  t  ;  and,  thcrcfuie,  tlie  substance  of  all  my  lord 
de  Witfs  manaiiuicnt  of  this  matter,  concerning  Suri- 
nam, ma\  ,  as  1  humbly  conceive,  be  reducible  to  two 
beads  only. 

The  first,  drawn  <h-  jure  •:riiliuin  from  the  custom  o*" 
all  treaties  and  the  riglits  Ibllowing  thereui'.on,  which, 
as  to  the  matter  in  iiiiud,  admits  but  of  two  cases,  viz: 
either  where  a  couhtry,  proviucc  or  city  is  taken  mv 
a'-ticles  made  at  tlic  surrnidcr  of  the  said  jjlacc  s  no 
after-capitnlatinn  lieing  at  all  made  for  the  said  places 
with  any  sovereign,  l-ut  the  places  al)solutely  held  by 
virtue  (tf  the  said  suirender,  whiidi  case  is  sutUeient  for 
ihe   ic([\iiring  <•!'  a    possession. 

The  second,  wlu-ic  any  cnuntry,  i)rovinc,-,  or  city  is 
taken  bv  articles  nr  condition^,  made  at  the  saiii  surren- 
der, an  after-capitulation  lor  the  cession  and  reliction  of 


#•# 


Or^    THE    LAW    OF    NATIONS. 


765 


all  rights  or    pretence  to  the   said  places,    made  by  tho 
state  receiving  the  said  surrender,   and  the   crown  that 


had  the   1 


ornier  sovereignty  of  the  saiJ.    places,   which 


cession  conduces  to  settle 


11  riglit  ior  ever  al'ter  the  said 


ce 


ssion,  and  which  last  is  granted  to  }>e  the  present  case 
of  Surinam,  on  th;>  part  of  ihe  Dutch,  and  of  the  M 
hat 


OU,"' 


ecjually   on  the  pa  it    of  the    Endisli 


111   lj 


which  cases,  the  lord  de  Witt  doth    frankl 


in- 

oth 


V    trrant,  that 


the  said  articles  and    coiidit 


ion- 


iu    honor,    justice,  and 


conscience,  ought  to  he  strictly  ()i)servcd  and  inviolaldy 
kept  with  the  said  iiihal)itaiu<,  hy  that    state  that  hath 

tyof 


|)^)sscssi()n  and 


sovereiirn 


acquired  tho  said  plenary 

them,  as  what  is  but  the  indubitable  and  iierDctual  lif-ht 


of  the  said  inbabitant.- 


But  that   which  mv   lord   de  Witt    insist.- 


upon,  and 


principally  contciuls  for,  is,  that  after  the  said  cession  or 
reliction  of  the  sovereignty  of  tlie  [>lace  to  any  state  is 
\  ist,  the  dispensing  of  tiiat  justice,  (hie  to  the  said  in- 
habitants, by  virtue  of  any  forniei-  treaty  or  articles  of 
surreiuh'r,  doth,  not  only  singly,  but  exclusively  belong 
to  the  right  of  the  said  state  wIhj  is  prcst'ut  possessor 
of  the  said  jjlai'e,  a<  an  iiiseparalde  branch  or  part  of  the 
sovereign!;,  ;  and  that  tlicre  lietli  iicitlicr  any  right  of 
appeal  in  tlie  inb.ibitMiits  (,f  tin-  sjid  pbicc- -o  Minciuler- 
ed,  nor  so  much  a--  right  of  mediation  or  iiitcircssion, 
and  much  less  of  judguiint  and  ail.ilialioii  in  bini  that 
was  the  former  sovereign  ;  allliou-b  iIk-  present  sove- 
reign of  the  said  jila.rs  should  citbcr  liiij  of  olwcrvin'' 
the  said  aiticliv-,  or  should  do  aii\  liijui  v  to  ibe  >;,jd  in- 
h:ibitaiil<,  aiM  ibercfoiv  tboiiuli  tbr  I'Jmiivl,  ;i|  Surinam 
have  several  undeniable  i  ight  •,  w  hirb  d  .  belon-  to  tbem 
by  virtui'  of  the  artitdt^s  made  ly  tbem  at  tb.' scrreiider 
uf  the  said  place,    and  such  as    they    may  in  Justice  ex- 


ai 


756 


OPINIONS    OP    EMINENT    LAWYERS. 


pect  to  be  made  good  to  them  ;  the  judgment,  neverthe- 
less, of  the  rights,  with  the  due  dispensing  and  adminis- 
tering of  them,  is,  siuee  Jie  general  artieles  of  peace, 
so  much  and  so  exxhisively  the  i  ight  of  tiie  states-gen- 
eral, as  the  said  English  neitlier  can,  may,  nor  of  right 
ought  to  api)ly  themselves  to  any  other  than  the  said 
states-general  !()r  the  making  good  tif  them  ;  nor  hath 
his  majesty  any  right  now,  nor  any  color  of  right,  to 
become  a  mediator  or  intercessor  on  the  behalf  of  the 
said  inhal)ita!its,  his  majest}'  having  by  the  articles  at 
Breda  relin(|uished  the  sovereignty  of  the  said  place 
wholly  to  the  states-general. 

And  thi.s  assertion    of  the  lord  de   Witt's  he  doth  en- 
Jeavor  tcj  enl'orce  liy  the   precedent  of  tlie  town  of  the 
Burse,  and    Maotric'at.  and  other    places  taiven   in   the 
war  between  the  Spaniards  and  them,  not  without  con- 
ditions or  articles   (if  surn'uder,   and  since    relinquished 
in  ],jint   of  sovereignty  to    tlivm  li}'  the  general   treaty 
at  Munster  ;  since  which  treaty,  therefore,  as  the  itdiabi- 
tant.s  of  Burs.>,  or  Mae<triidit.  can   have  no  right   to  ap- 
plv  theuisrlves  to    lie  king  of  Spain  lor  thi'    remedying 
of  any  injury    or  wrong  that  niiidit   be  offered  them  l)y 
tho  states-general  in  their    non-performance  of  the  said 
articles;  so,  neitlur  ean  the   king  ot  Spain,  bv  virtue  of 
his  former  sovereignty,    so  muih  as    interpose  on    their 
belialf  with  tlic  -aid  states-geii,  .af  even    though  all  the 
sai<l  coiiditimi^  shuulil  Kc  \inlated  that  had  been  former- 
ly made  with  lin'in. 

Secondly,  he  I'nfoici'ili  it  from  the  instance  of  Klan- 
dcr.s,  as  now  held  by  the  king  of  b  ran(;e,  upon  tlu>  trea- 
ty at  Aix  la  ('liapellc,  where,  though  the  iidiabitants 
have  many  rights  reserved  to  them  u[)on  the  surrender 
made  by  them,  yet  the  obscrvaucc  or  nou-ubscrvancc  of 


OF    THE    LAW    OP    xVATIONS.  757 

the  said  rights,  or  of  any  of  the   articles  or   conditions 
made  with  them,  is  equally  as  much  at  the  pleasure  of 
the  king  of  France,  since  the  king  of  Spain's  relinquish- 
ing his  dominion  to   them,  as  it  would    have  been   had 
he  held  them  merely  by  virtue  of  his   conquest   or  ob- 
taming   of  them    without  any   after  capitulation ;  and 
therefore,  though    the  king   of  France   be  in  honor  and  - 
justice  bound  to  conserve  the  soid  conditions  and  articles 
made  with  the  inhabitants  of  Fl-^nders;  yet  if  he  shall 
neglect   it,  or  do  any    thing  to  the   contrary  of  it   the 
king  oi  Spain,  nevertheless,   cannot  interpose  in  ^t'  nor 
can,  upon  any  such  injury  as  shall  be  oftered  them  'pre- 
tend to  any  right  to  become  a  mediator  and  much  less 
an  arbitrator  for  them. 

Thirdly,  he  enforceth  it  from  the  general  inconveni- 
CMices  that  must  follow  on  all  treaties,  dispositions,  and 
translations  of  the  sovereignty  of  places,  if  the  places 
once  so  conceded  or  relinquished,  should  have  their  ju- 
risdiction or  dominion  so  mixed,  as  that  anv,  beside  the 
present  sovereign  of  them,  should  challenge  a  right  of 
interposition,  nK..n'-on,  or  arbitration,  by  virtue  of 
their  prior  right  ot  the  sovereignty  to  them;  seein- if 
th.s  should  be  once  admitted,  there  could  never  be  Tny 
peace,  or  any  end  put  to  the  settlement  of  the  sovereicru- 
iy  or  dominion  of  them.  " 

Fourthly,  he  enforceth  it  from  an  argument  (r:  y.^nj) 
that,  seeing  by  the  same  articles  which  have  been  made 
w.tl.  his  luMJesty  at  Hreda,  tiie  Dutch  have  relin.iuished 
their  sovereignty  to  the  Manhatons  and  the  whole  region 
of  It:  the  states-general,  therefore,  neither  can '^nor 
ought  to  interpose  for  the  inhabitants  of  the  said  New 
Netherl.mds,  in  reference  to  any  articles  or  conditions 
made  formerly  with  them,  or  to  the  perforniauce  of  them, 


i  M 


I 


758 


OPINIONS    OF    EMINENT    LAWYERS. 


i 


but  ought  to  leave  the  whole  dispensing  of  that  right 
to  the  proper  jurisdiction,  power,  and  sovereignty  of 
his  majesty,  and  that  without  any  interposition  or 
mediation  on  their  part,  though  his  majesty  should  think 
fit  to  violate  all  the  said  articles  or  conditions  with  them. 

All  which  arguments,  my  loid,  are  so  strongly  found- 
ed, and  so  advisedly  laid  down,  that  I  see  not  at  present 
what  can  l)e  said  against  them,  if  we  shall  admit  the 
sovereignty  of  the  said  colony  t<>  be,  by  virtue  of  the 
said  articles  of  Breda,  really  and  plenarily  relinquished 
to  theui. 

The  only  differenco  I  can  possibly  discern  in  this  case 
of  Surinaui  is,  and  nnist  be,  "herefore,  whether  the  said 
sovereignty  of  Surinam  he  as  perfectly  and  absolutely 
relin(iuished,  by  the  said  treaty  at  Breda,  to  the  Holland- 
er, as  tl-..  Burse  was,  and  those  other  places  before 
named,  which  is  the  next  part  or  head  of  the  said  paper. 

Onlv  by  the  way,  my  lord,  inasmuch  as  the  States  of 
Zealand  do  pretend  to  the  sovereignty  of  Surinam,  and 
seem  not  to  pUow  of  an  appeal  to  the  States-general, 
though  it  was  the  States-general,  and  not  the  States  of 
Zealiuid,  io  whom  the  said  country  was  by  the  articles 
of  general  peaeo  delivered  ;  it  nuist  of  necessity  create 
not  oidy  a  great  dithculty,  but  a  great  disadvantage  to 
the  inhabitants  of  Suiinaui,  who  nuiy  hy  this  means  be 
much  defeated  of  what  is  the  proper  right  of  them,  uu-. 
less  the  States-general  shall,  as  in  reason  they  ought, 
assert  their  i)lenary  jurisdiction  and  sovereignty  over 
them,  and  give  not  oaly  countenance,  but  leave,  to  ap- 
plv  themselves  to  them,  which  is  the  utmost  I  can  see 
his  maje>ty  can  request  on  the  behalf  of  them  ;  admit- 
tin<'  the  right  of  absolute  sovereignty  really  to  belong 
to  them. 


■ 


OP    THE    LATV    OP    NATIONS. 


759 


The  next  principal   head,    therefore,  of    my  lord  do 
Witt's  papef,  is  to  clear  the  absolute  right  of  sovereignty, 
and  to  remove  the  oi.jection   that  is    made  to  it   by  h* ' 
majesty,  from  these  words  of  the  treaty,  "  eiwi  prurms 
in  modum,  qm  co  die  Mail  !,'>  proxlme  clapsl,  omipaocrai 
d' po.^scdlt,"  which    we   english,  "and    that  altogether, 
after  the  same  manner  as  they  had  gotten  and  did  pos- 
sess them,  on  the  il)  day  of  May  last,"  which  words  are 
therefore  contendc  i  for,  by  us,  to  be  a  qualification  or 
restriction   of  that   cession  or   reliction  which  is  made 
by  the  said  treaty  of  the  sovereignty  of  the  said  place, 
and  are  urged  by  us,  as  it  seems  by    those  words,    that 
they  are  obliged  to   hold  the  said    place  after  no  other 
mnnner  in  point  of  jurisdicti.m  or  dominion  than  as  they 
were  possessed  of  iton  May  ^^,  which,  as  we  truly  allege, 
thev  were  by  v..  ue  of  those   articles  only  which  we"re' 
made  with  the   inhabitants  of  the  colony  at  the  surren- 
der of  it ;  and  this  I  must  freely  confess  to  your   lord- 
ship, I   alway.,    took  to    be    not   only  the  genuine  and 
natural,  but  th.   indubitable  sense  and  intent  of  the  said 
words. 

But  these  words,  as  they  are  thus  applie.i  by  us  to  a 
qualification  or  restriction  of  the  plenary  right  of  sove- 
reignty and  jurisdiction,  will,  I  perceive,  bv  no  means 
be  admitted  by  the  lord  De  Witt,  and  the  reason  he 
seems  to  give  is  this,  because  such  a  qualitication,  if  in- 
tended with  re;>rence  to  the  said  inhabitants,  must  sup^ 
pose  a  power  to  be  placed  in  some  or  other  to  be  an  ar- 
bitrator, and  to  judge  whether  tlv.a  7nor/>/.9,  ov  manner 
of  possession,  be  all  along  kept  with  the  .said  inhabitants 
or  not;  for  otherwi.se,  such  a  .[ualification  or  restriction 
can  b.'  to  no  i)uri)ose,  nor  of  any  efficacy  or  matcnal- 
ncsne  at  all.     But  this  interpretation  of  it  li.>  utterly  de- 


iff 
1 


^  ' 


760 


OPINIONS    OP    EMINENT    I-AWYKRS. 


nies,  in  regard  it  would  then  unavoidably  interfere  with 
the  concession  of  that  plenary  sovereignty  apd  jurisdic- 
tion which  is  granted  of  the  said  place  in  the  very  same 
third  article  of  the  general   peace,  and  must  imply  also 
with  it  a  cuntradiction  in  the  very  words  and  gramma'- 
of  the  said  article ;  and  that  in  regard  a  sovereign  right 
cannot  possibly  be   transf<  rred,  without   the   privation 
and  exclusion  of  all  right  after  any  manner  whatevoi-  in 
any  other  person  beside  ;  and  because  a  right  of  judg- 
ment, arbitration,  or  mediation,  if  reserved  tc  or  in  any 
other,  doth  and  must  destroy,  of  necessity,  such  a  right 
as  is  plenary  and  sovereign,  so  that  these  two  can  be  no 
way  consistent  together;  and  therefore  either  the  latter 
clause  of  the  said  3rd  article,  "  exin  prorsits  in  inodnm, 
&c''  cannot  be  meant,  as  if  it  could  be  intended  there- 
by to  put  a  modification  or  restriction  upon  right  -tf  ab- 
solute sovereignty  ^  ^fore  granted,  or  if  it  shall  be  so  in- 
terpreted, then  must  the  words  before  mentioned,  ''cum 
plenario  jxye  sui^imi  imjK-rii^  proprietnti^^  & po>iStmon- 
is,  omnesejmmodi  terya-9.  hea,  d;  colon  ia-'^,  t'-neaf  <{■  pos- 
sideat  in  jms-ieruin,''  that  is,  "  that  either  ])arty  shall 
keep,  and  possess,  for  the  future,  all  such  lands,  places, 
and   colonies,    how    many    soever,   with    pleuarv   right 
of  sovereignty,  property,  and  possession."  be  wholly  re- 
scinded, seeing  these  two  clauses,  being  directly  oppo- 
site, can  no  way  stand  one  with  anotlier.     liat  that  1)y 
the   first  words,  "  cum  ploiarlo  jure,''  an  absolute  and 
unlimited  cession  of  sovereignty  was  intended,  the  lord 
De  Witt  dotli  appeal  to  the  circi;mstances  of  the  treaty, 
and  principally  to      -..^j  or  given  in  by  the  lords  pleni- 
potentiaries of  the  L..'4hsh  themselves,  July  7,  l('(i7,  in 
which  the  former  clause,  ''cum  plenario  vtre'  is  provid- 
ed fuUv  for,  and  the  latter  clause,  "eum  /);-o/'.w/.s>  in  mo- 


OP   THE    LAW    OP    NATIONS. 


761 


(/«//?,"  is  wholly  left  out,  and  so  the  scruple  is  removed  : 
the  truth  and   examination  of  vrhich   matter  of  fact,   I 
must   L.iibly   leave   to   your  lordship;    f„r  upon   this 
ground,  it  is  plain  that  the  lord  De  Witt  will  have  the 
latter  clause,  ''euin  ]i,-ory>is  in  modum;'  to  he  added  on- 
ly to  limit  and  re.train  the  possession,  as  intendinjr  that 
f'.inse  places  strictly,  which  were  actually  possessed  on 
either  ..ide  on    May  .1^,  shouhl,  as  they   were   possessed 
without  claim  to  any  others,  which  wore  not  so  actually 
possessed  l>y  them  at  that  time,  he   mutually  conceded 
to  each  other,  in  the  point  of  plenary  right  and  sove- 
relgity  to  them;  and  indeed  my  lord,  this  consequence 
is  so  rational,  that  if  ihe  matter  of  ll-.ct  ho  granted,  and 
the  plenary  right  of  the  sovereignty  to  Surmam  be  yield- 
ed  to   be  conceded  in  the  former  part  of  the  words  of 
that  article,  there  is  no  avoiding  the  latter  possibly:  see- 
ing,  as  it  cannot  he  denied,  that  tlie  latter  --      '\  ''evm 
p'nrsvs^  ;n  n.oJxtu:'  do  bear  the  for;<e  of  .i  limit    ion,  it 
must   inevitably  follow,  then,  that  if  this  lii.iitation'be 
not  to  be  applied  to  the  sovereignty,  it  must  of  necessi- 
ty he  applied  to  the   possession  and  detention,  because, 
besi<les    theso  two   things   there  is   nothing  else   before 
mentioned  ;    and   I  nuist  needs  acknovdedge  also,  my 
lord,   that  my  lord  De  AVitt's  pk-a,  for    die  not  applying 
the  said  limitaticm  to  the  sovereignty,  ])ut  rather  to  the 
possession  and  detention,  is,  beside  the  said  fact,  so  much 
the   more  strong,  firmer,  and  more  valid,  by  how  nnich 
no  mived  sovereignty  is  usual'      it  any  time  transferred, 
nor  can  well  be  done ;  but  it  d  in  its  own  nature  in- 

troduce a  manifest  confusion,  and  create  endless  disputes 
about  the  lawfulness  of  the  said  dominion:  and  should 
it  be  granted,  it  would  equally  be  as  inronvement  for 
his  majesty  in  reference  to  the  country  of  the  Manhat- 


'fi 


i 


(62 


OPINIONS    OK    EMINENT    LAWYERS. 


ons,  as  it  is  Ibr  the  Dutch  in  reference  to  Surinam ;  so 
that  upon  the  whole,  my  lord,  I  see  no  cause  but  to  ac- 
knowledj^e    the  great  judgment,  maturity,     Ivisedness, 
and  civilities  of  my  lord  De  Witt's  answer.     This  there- 
fore, being  the  on      mate  -ial  thing  that  .seems  to  be  un- 
taken   notice  of  in  it,  which  is   the   enumerating  what 
places  they  are  of  which  on   May   ji   the   Dutch  were 
strictly  possessed  ;  for   in  regard  it  is  wholly  agreed  by 
my  lord  De  Witt  himself,  and  so  agreed  as  it  never  can 
by  his  own  answer  be  avoided,  that  his  possessing  Sur- 
inam can  give  him  a  right  to  no  other  place  lieside  Sur- 
inam, that  he  did  not  ac'.nally  possess  at  that  time  :  so, 
inasnmch  as  he  cannot  prt^teiid  to  be  ])ossossed  of  every 
river  in  tiiat  coast,    then  lie  cannot  pretend  to  have  the 
right  of  sovereignty  over  all   tlic    whole  coast,  or  the 
right  of  sovereignty  in  or  over  any  place  more  of  the 
said  coast,  than  of  those  places  strictly  and  limitedly,  of 
which  he  was  liijuidly  and  ccrtaiidy  possessed      Which 
being  granted,  vi        lord   President  will  see,   th.it  to  as- 
sert the  '■  fikiKviuiii  jii-9,"  or  sovereign  right,  what  it  is, 
which  the  Dutch  now  have  upon  the  coast  ol' (Juiana,  l<y 
virtue  of  the  articles  of  ])eace,  it  is  al)solutcly  necessary 
for  them  that  they  should  prove  what  they  did  so  stiict- 
Iv  possess,  and  sho\dd  enumer.ite  tiic  pluces,  rivers,  coun- 
tries, or  colonies,  distimtly  and  exclusively,  whicii  they 
h  id  the  posst's-,i>iu  of,  and  which  as  we  have  said  is  not 
done,  l)ut  is  omitted  wlK)lly.  in  that  otherwise  most  full 
and  accurate  answer  of  my  lord    De  Witt:   for  as  we 
must  grant    iiiey  have  n.  t    only  .1  right    to  (lie  river  of 
Surinam,  but  to   so  iii;niy  other  rivers  also  u|M)n    tliat 
coast,  as  it  di>th  ajipear  were  not  onl}'  seized,  but  actual- 
Iv  held   and   j>ossessed  by  them  on   May  J,!,  so   nnist   we 
•q^ualiy  und  strictly  insist  upon  it,  that  Iwside  what  riv- 


WJ- 


^1 


OF    THE    LAW    OP    NATIONS. 


763 


ers  they  so  possessed,   and  can   prove  that  they  wore 
then  really,  actuallv,  and  strictly  held  by   thorn,   they 
cannot  challenge,  nor  ought  wo  to  grant  they  have  any 
right  of  sovereignty  in  them;  and  consoqu^.  tly  that  as 
they  have  no  right,  so  no  pretension  of  any  light,   to 
whatever  river  or  place  was  certainly  and  actuallv  I'leld 
by  us,  upon  any  pait  of  that  coast,  be  it  where  it  will,  so 
that,  to  apply  the  whole,  as  the  Dutch  there  being  p.-s- 
sessed  of  th."  river  Surinam  on  May  •';,  could  give°them 
no  right  of  sovereignty  to,  or  over,  Marawvn,  Mapawyn, 
or  Couiowyn,  which  are  other  rivers  upon  the  same  coast 
of  Guiana,  had  .  ot  these  rivers  been  then  also  actually 
possessed  by  Hheni,  so  their  right  of  sovereignty  over 
those    rivers  coming  strictly  by  their  actual   unlimited 
possessing  of  them,  can  give  them  posMbly  m)  right  to 
the  river  of  Saiamica,  which  they  wore  not  at  that  time 
actually  possessed  of  but  was  actually  held  bv  us;  seeing 
if  their  possession  of  the  rivers  before   mr'ntioncd   can 
give  them  a  right  to  Saramica,  which  they  .-annot  pre- 
tend  to  be  possessed  of,  it  may  as  well  -|"""lly  ^ive  (hem 
a  right  to  a  second  rivc-r,  and  so  to  a  third,  and  so  to  all 
the  rivers  up..,,  ,l,o  eoast,  which  is  absurd  even  by  my 
h)rd  l)e  Witt's  own  reasoning,      Who,vf„re,   1   .ni.elude, 
my  lord,   that  Sarami.a  being  bcl.l  by  us  mi  M,,v   ';  jj 
ours  in  the   .^uvereignty  of  it,   by  unquestionable '  right, 
and   that,  beside  the  rivers  of  .Surinam,  Map.iu\ n,  Ma- 
rowyn,  and  Cmowyn,  we  have  a.  riglit,  eipiillv  with  (ho 
i)utcli,   (oriiiy    ..(lior    riveiH  or  places   upon    Hiat   ,,,ast 
which  was  the  thing  principally  ai.ned  ut  in  my  last  to 
express  the  duty  of,  my  lord, 

Your  birdship's  servant. 

W.  Temple. 


i  .  l\ 

r 


POSTSCRIPT, 


The  Discussion,  >)y  tlie  iJarristor,  before  inserted,  was 
written  by  John  Reeves,  P^scj.,  the  Author  of  the  His- 
tory of  the  English  Law,  and  of  other  Works,  legal  and 
political. 


INDEX. 


Ahsentcn  from  genoral  assemblies  may  be  proceeded  against  in  the 
courts  of  justiop,  and  punished  by  fine  and  imprisonment,  2<JG. 

ActsoJ  parliammt  extending  to  the  king's  dominions,  are  in  force  in 
the  plantations,  notwithstanding  some  of  the  provisions  may  be  appli- 
cable only  to  (iroat  Britain,  212.  '        ' 

and  an  act,  declaring  such  n  ^  perpetual,  is  equal  y  ex- 
tensive, il). 

but  it  seems  that  a  clause    introducing  a  new     .  imo,  and 

made  to  render  more  effectual  an  act  not  extending  to  the  fol)nie8, 
will  not,  unless  the  colonies  be  referred  to,  extend  to  them,  j/ 

• whether    an   act,  which  was    to  continue  so   long  as  Mr. 

Worsley  coutinucJ  governor  of  Barbadoes,  ceased,  if  a  new  commis- 
sion was  crauted  to  him  within  six  months  after  the  king's  death,  238 
211.  '        ' 

if  the  new  commigsion  bo  granted  after  the  expiration  of 
the  cix  months,  it  s^oms  that  the  net  is  determined,  238. 

where  land  is  given  to  the  king  by  act  of  parliament,  or 

where  a  conveyance  by  a  statute  is  made  good  ogaiust  a  particular 
person,  nil  other  nu■n■.^  rights  are  saved,  without  any  proviso,  356. 

— are  perpetual,  uuloes  there  are  words  in  them  to  determiuo 

their  duration,  -IJ'.) 

Adminis/rn/ion,  right  of  granting,  belongs  to  the  srchhishop  of  Canter- 
bury, where  a  i.,aii  die.i  intestate  in  the  plantations,  having  personal 
estate  in  Knglond,  03. 

'^  granted  in  thu    planUtions,  that  administrator   will  bo 


766 


INDEX. 


acoountable  to  the  administrator  in  England,  but  will  be  allowed  the 

pajTient  of  just  debts,  if  paid  iu  the  order  the  law  allows,  ib. 
letterr  of,  under  the  seal  of  the  prerogative  court  of  Can- 

tcrbuiy,  when  received  at  the  plantations  are  to  be  allowed  there,  and 

the  auihority  of  the  administration,  granted  in    the  plantations,  ceases 

from  that  time,  Go. 
Administrator  in,t/ie  plantations  (See   titles  Administration  and  In- 

tcUate. ) 
will   not  be  allowed  the   payment  of  any  debts,  without 

specialty  iu  the  ciijinies,   if  there  be  debts  of  a  superior  nature  un- 

Batistic'd  iu  Englaii'l.  i)3. 
if  there  be    debts   of  equal    nature   in   England  and  the 


plantations,  he  may  discharge  which  he  pleases,    before  he  be  »aed  for 
any  other  of  tlic  like  nature,  ib. 
Adnitralrij,  vessel  token  by  a  non  commissioned  ship  is  a  perquisite  of, 


Admiiulty  ciurtsin  EngJand  and  the  coionics. 

their  jurisdictiou  respecting  mattcTs  relating  to   the  colonies, 

4W,  50-2,  503.     '' 

can  only,  as  such,  try  pirates  by  the  civil  law,  511,  512. 

their  power  is  the  same,  but  an  ajjeal  lies,  ficm  the  courts  in 


the  colonics,  to  the  court  of  admiralty  iu  England,  510,  5  IS,  531,  532. 
ill  acts  in  which  the  terms  '•  i,s8oigii,"  "  protection,"  or  "  wager 


of  law''  are  used  with  refe    uce  to   the  king'.''     ourt,  the  adu*    alty  ia 
excluded,  and  it  is  not  a  court  of  r<-oord,  51'.) 
m:.y  tine  aii.l  imprison  for   contempt  in  court,  but  not  for  any 


thing  done  out  uf  court,  5~0 
Advmcsoiis'm   plantations  suljoct  to  the  laws  of  England,  where  there 

is  no  express  laws  of  the  plantation  coi'cerning  the  same,  58,  GO. 
ill  case  of  avoidance,  ti.e  ordinary  of  the  plautation,  according 

to  the  Stat.      8    Hen.    VIII.  c.    tl.   s   5.  ia  to    appoint  a  minister    to 

officiate  till  presentation  or  lapse,  58,   til. 

-and  he  may  collate  to  a  churcl    by  lapse,  GO. 


.44,'tV/-.  observations  on  report  relating   to  the  trade  of  Minorca    with, 

0    1. 
Aliens,  l>ow  they  becorao  suhjecls,  GOO  to  GGG. 
Alun  enemies  preserve  their    rights,  by  the  law  of  natiooi,  to  \  roperty 

iu  the  public    funds  (if  the   hostile   government,  uotwitfastauding  the 

war,  038. 


%^     t 


INDEX. 


767 


American  acts  of  the  10th  of  February   1715,  1716,  and  the    17th  of 

July  1740,  expired  with  the  war,  232, 
-  goods  taken  under  the  American   act  of  the  Cth  Ann,  and 

carripdto    ports  in  America,    chargeable   as  prize   goods,  with 'such 

duties  as  would  be  left  in  England  if  the   same   had  been  exported 

after  an  importation,  58G. 
Amcrkan  citizens,  whether  British  subjects  or  aliens,  648. 
Am-icnt  riplt/s  restored  on  a  re  conquest  of  landu,  131. 
Ai>peal  in  legal  proceedings  lies  to  the  king  in  council,  230. 
——lies  from  the  court  of  exchequer  to  'he  governor  and  council  of 

the  plantation,    489. 

——and  from  the   governor  and  council,  to  the  king  in  council,  496, 

As,nnUics,  ^tncral,  \niho  colonies,  king's  right  to  call    and   continue, 
200,  231.  ' 

■      :  """^^  adjournment  or  prorogation,  may   be  prorogued 

without  a  meeting,  'JSU. 

■ wbcther  entitled  to  the  privileges  of  English  parlianen's, 

I'V  and  see  '^'jr.,  2'.I2. 

; — ^ ^'"^  '^'"g'''  prerogative  in  relation  to  them  is  as  oxtrnsive 

as  in  England,  ih. 

"'"   '"'    dissolved  by  the   publication  of  a   eonmission, 

detcrmini.ig  the  c.nimission  of  the  governor  by  whom  the  kind's  writs 
were  tented,  lil'.i. 

^'I't  are  dissolved  on  the  death  of  the  king,  252,  322. 

-contra,   290,  to  .'i20. 

""  regulated  by  their  charters,  usages,  and  the  common 
law  of  Englai.  ',  and  are  not  entitled  to  tJie  same  privileges  as  the 
house  of  commons  in  England,  -.'(U,  293. 

"'"  ^'*-''''  "'  ft-nding  reprcscn'itives  to,  may  be  altered 
270,  273,  27o. 

-neglerting  tr,  meet  at  the   time  to  which  thry   wore   ad- 


journed, fire  not  dissolved,  27  I 

\ \ *'"'''■    ''■'''  "'■P  Rood  til'  repealed,  and  are  void  only  from 

notification  of  the  repeal,  9.92 

conviction    ..f  person  in    England  U  no  legal    objc-tinn  to 
his  silling  in,  2'>.'>. 

— absentees  from,   may   be  pro-ncJed  against  in  the  court. 

of  justice,  and  punished  by  fine  and  imprisonment,  ,h. 


768 


INDEX. 


Assembiics,  gener  ^,  have  no  power  to  impose  a  tax  upon  convicts  from 

England,  '33G. 
acts  of,  cf  the  same  effect  in  the  colonies,  as  acta  of  parll- 

ment  in  England,  35  I. 

-cannot  alter  the  common  law  of  England,  or  the  common 


securities  of  the  kingdom,  or  affect  the  king's  prtTogativo,  or  take 
away  any  authority  vested  in  the  governor  by  virtue  of  the  king's 
commission,  370. 

-whore  patentees  oflands  have  not  planted  them,  assembUcs 


have  passed  acts  for  the  resumption  of  those  lands,  387. 
-acts,  unwarranted  by  the  charter,  void,  40-^. 


—act  ought  not   to  be    repealed    wiiicli    would    injure   the 

rights  of  purchasers  under  it,  after  a  long  aoiuiesceuco.  100. 

Assent,  royal,  precedent,  as  effectual  as  subseijueut  to,  a  session,  309. 

Atcornei/  general,  informations  by,  observations  on,  and  act  respecting, 
493,  496. 

B. 

Bahamas,  division  of  an  intestate  mulatto's  estate  in  the,  150. 

treasure  trove,  the  property  of  the  crown,  ib. 

charter  nf  these    islanu :!    does   not  entitle  the   proprietors  to  an 

adniiralty  jurisdict  on,  507. 

BarUidvcs,  regulation  of  proceedings   in  the  court  of  common  pleas  in, 

I'JO. 
whether  the  commission  of  governor  ceased  by  the  king's  death 

"34  ;  and  see  title  Act 
. act  for  laying  a  duty  on  wines  and  strong  li.juors   imported  into 


the  island,  objectionable,  3(jO. 

-private    acts    for    docking   entails    objectionable    for    particular 


ground.-i  in  eacii  act,  'Mu . 
net  of    1  :'.i'J,  for   supporting  the  honur   and  di^rnity  of  the  crown, 

objcctionab'e,  3i.'.>. 
act  relating  to  the   payment  of  bank  bills  objc'-tion-ibl.',  as    vari- 


ant from  the  instructions  of  the  crown,  and  being  infuihcicnt  and  re- 
pugnant to  the  laws  of  tiie  land,  tiie  riglits  of  the  subject,  and  the 
prerogative  of  the  crown,  373  to  383. 

-act   prohibitnig   the    carrying   nwny   white  servants,   without  the 


consent  of  the  owners,  under  a  peimlly.  iibjettionable,  384. 

-act  obliging  ollictrs  to  hand  up  tables  of  lees  in  their  offices  and 


cour ts proper,  but  punishment,  without  trial,  for  theomissiou,  unjust,  3U1. 


INDEX. 


769 


iiarArtrf,,^.,  act  to  empower  licentiate  lawyers   to  practice  as   barristers 
objectionable,  39-2. 

—  decree  of  the  court   of  chancery,    under   which  lands  had  been 

seized  for  noi.-p.^ymeiit  of  .tchnrity   rent,  which   was  not  charged   on 

the  grantor's  real  estate,  controvertible,  467. 

net  to  bar  entail   in   l.md.s  il.ero  proper;  as  by  the  laws  of  that 

plantation,  a  deed  re^H.tered  there  will  be  as  effectual  a  bar  as  aa  act 

of  assembly,  485,  liO,  487. 

approbation  of  acts  passed  in  1701,  502. 

ob'^cTvations  on  act.s  in  1701,  507. 

Bermuda  islands,  report  on  the  acts  of  assemblies  in  1G90,  1    4    8  and 

1701,  403  to  422.  '     ' 

act  affecting  the  importation  of  British  goods,  objectionable, 
422 


-observation.s  on  judicial  proceedings  there,  4':i  to  4(37. 
Bomls  from  the  governor  of  a   proprietary   government,  for  observing 
the  acts  of  trade,  should  .,c  to  the  king,  his  heir.s,  and  succcs.sors,  2GI. 

c. 

Canada,    r>yjtr,  crimes  committed  in,   triable  in  the  courts   of  justice 
there,  215. 

Canaij/  hiainh  not  esteemed  i)nrt  of  f:urope,  and  wines  may   bo  car- 
ried directly  from  thence  to  the  jil.intation.s,  572. 
Caufrr/jini/,  anhljishop  of]  his  pr<To,L'ativi-  power  concerning   wills  and 

adniiiiistralioMs,  f>  J.      See  title  A'l iiniiistnU ion. 
Cuii/iina,  coiihtitutiiiiis,   '..76,  ct  sni. 

observations  against  duty  of  iO  per  rent,  on  British  good:     58G. 

,  ^"^outli,  funds  arising  from  taxes  in,  disposable  only  by  the  same 

autlinrity  which  rai.-cd  them,  y'.H'i. 
there  fore  a  grant  by  the    assembly   alone,  of  p;.rt  of   the 

funds  for  ,-upporting    the  rights    and  lihertiis   of  Great    Britain  and 

America,  and  the  c-oiise(|U.'iit  p,'iyiii<iit,  illegal,  '2'.lfi. 
""'•'*  *'"■  i«'f,'uhiting    courts  ot  justice  in,   illegal,  as  pa.ssed 

by  an  usurped  .lu'horitv,   342. 
■""'  '''C  "^'t  relating  to  the    l,i.,uiial   and    other    a.s.seniblies, 

and  regulating  elections  of  members  considered  derogatory  of  the  au- 
thority of  the  crown,  .'!  1 1 
— act   for  the  government   of  Charlestown   objectionable,   as 


770 


INDEX. 


establishing  an  oligarchy,  and  being   against   the   inclinations   of  the 

majority  of  the  iiihabitaut?,  395. 

act  passed  in  174G,  relative  to  coins,  objectionable,  425. 

observations  on  the   act  pafscd  in    1747,   empowering   two 


jnsticcs  and  three  iVeeholders,  or  a  niajority  of  thcni,  to  determine  in 
actions  of  debt,  where  the  uiatter  in  dispute  did  not  '^xeec  1  20/.  476. 
observations  on  their  acts  for  the  regula  ion  of  the  Indi« 
an  trade,  592. 

— ,  JS'orth,  acts  not  ratified  by  the  palatine  or  his  deputy,  and 


three  of  the  lords  proprietors  and  their  deputies,  in  tlie  same    session 
of  parliament,  not  binding  on  the  crown  or  people,  359. 
:'('ts  concerning  attornies  from  foreign  parts,  and  forgiving 


priority  to  country  debts,  void,  so  far  as  it  postpones  the  execution  or 
judgment  for  foreigu  debts,  as  being  unwarranted  by  the  charter. 
402. 

Ceded  countries,  inhabitants  of,  being  French  and  Spaniards,  not  to  bo 
considered  as  aliens  after  the  peace  of  17G3,  G46. 

Cfssiu/i,  effect  of,  with  regard  to  the  Bovercignty  of  the  ceded  place, 
485,  ti'  tlie  end. 

Chanccnj,  by  tlie  practice  of,  defendant  after  process  of  contempt  has 
extended  to  a  se«iuestration,  ajipeariiig  and  paying  costs  of  the  coa- 
tompt  may  set  aside  the  sequestration,  479. 

Chd'Hciy  may  issue  w  rits  irohibitiiig  subjects  from  going  abroad,  548 

Ci'iitit  COU//S  can  be  established  only  by  the  legislature  of  the  colony, 
or  the  parliament  of  (Ireat  Britain,  459. 

Coin.      (See  title  C/ntn/i  i/'ritini:.) 

, foreign,  value  of,  establi.iiied  by  proclamation,  and  the  tender  there- 
of, according  to  that  value,  is  a  legal  tender;  and  pro]  rietary  govern- 
ments, making  laws  to  give  s\ieh  coins  a  currency  beyond  the  proclama- 
tion, arc  guilty  of  a  nUMlenicanor,  C)\0. 

Co/oiiics.      (Seethe  several  titles  in  the  index.) 

Coiiiniission,  gorcnior'-,  dcteriiiiuatiou  of.  cannot  operate  to  dissolve  a 
general  assembly,  249  to  2t")l. 

. u_  ceaacs  by  the  death  of  the  king,  252. 

. cannot  empower  the  passing  an  act  repugnant  to 

the  laws  of  Knglat.d,  375. 

its  authority  cannot  bo  affected  by  an  act  of  as- 


scuiMy,  37(i. 
Commissions  of  oyer  and  terminer,  for  trial  of  offouces,  cannot  be 


INDEX.  771 

granted  in  the  colonics  under  the  stat.  33  Henry  VIIT.  c.  23.  470. 

'  " IJ"'  il'cy  may  issue  in  England  for 

th.  trial  of  offences  committed  in  colonies,  in  which  there  are  no  set. 
tlod  courts  of  justice,  171,  525. 

~  and   under  the  stat.    11   and   12 
William  III.  c.  7.  513,52.). 

Commcn  law  of  Ens/uful,  and  statutes  in  affirmance  of  it,  passed  ante- 
cedent to  the  settling  of  a  colony,  are  in  force  there,  unless  there  ia 
any  act  to  the  contrarj-,  292,  r>\\. 

'  ^»i'  statutes  made  since  tne  settling  arc  not 

in  force,  unless  the  colonics  be  particularly  named,  228,  511. 
~~^~,  cannot  be  altered  by  acts  of  assemblies, 

Co»>,ecnc>a,  construction  of  the  charter  of,  as  to  the  power  of  making 
laws,  311.  ^ 

Conquerrd  parts,  king  may,  under  the  great  seal,  tax  and  mak3  laws  to 
bind,    15S,  231- 

Conquest  hy  the  enemy  suspends  private  property,  and  on  a  re-conrjuesi 
the  ancient  rights  revive,  and  are  rcstorai jure jxjst/inihiii,  ISO. 

binoF  inhabitants  to  allegiance  by  the  law  of  nations,  G12. 

Convicts,  tax  imposed  by  the  assembly  of  a  colony   upon,  illegal,  -^20. 

Conviction  in  England  no  legal  objection  to  a  person's  sitting  as  a  re- 
presentative iu  a  gi         il  assembly,  294. 

Corpo  ation  cannot  purchase  lands  which  shall  enure  to  then  selves  un 
less  by  license,  134. 

'  establishment  of,  for  insuring  ships,  observations  on  544  to 

G09. 

Confjnracy  to  entice  subjects  into   a  for  J^  .  -  -vice  is  a  misdemeanor, 

and  punishable  by  fine  and  imprisonment,  55G. 
CountcifrifiHL'  coin  is  only  a  niisdeniemior  in  the  colonics,  unless  their 

charters  make  it  a  groat  offence,  209. 
Crown.     Hoe  title  hin'j. 
Cuiloms,  officers  of  should  seize  j.rohibitcd  goods,  and  goods  for  which 

the  duties  have  not  lieen  paid,  .■>74. 
cannot  be  concrned  in  trade  and  shipping,  598. 


M 


I) 


Denizen  may  be  master  of  a  ship  trading  to  the  plantations,  644. 


772 


s 


INDEX. 
E. 


East  India  Company, \^yf9,ngvamt  British  sul)iects  engaging  in  foreign 

557. 
. . license  given  thcni  to  trade,  with  a  prohibition  to 

others,  good  in  law,  582. 
Ecclesiastkal  authority  abroad,  tlio  king's,  41. 
Eschcata  on  the  death  of  the  tenant,  without  heirs,  cannot  be  granted 

before  they  happen,  othcrwi.'^o  than    by  grant  or  alienation  of  the 

scignory,  112. 
J  on  attainder  of  treason,  belong  to  the  crown,  as  a  prerogative 

roval. —  Qt'rryc,  if  grantable  hefure  they  happen?   ii. 
Eurnpran  goods,  landing  of  at  Venice,  and  carrying  them  from  thcn-3 

to  Guinea  subjects  ship  and  goods  to  forfeiture,  ui.der  the  stat.  15- 

Car.  II.  2G7. 
Evidence  of  a  slave  agaiii.'^t  one  who  is  or  has  been  a  slave  is  good  proof, 

and  an  act  was  passed  in  Jamaica  to  prevent  such  evidence  against  a 

free  negro,  498. 
Exchciiuer,  court  oj\  king  by  his  prerogative  may  erect  in  the  planta- 
tions, with  the  same  powers  as  the  court  of  Exchaiuer  in  Jlngland, 


5C7. 


decree  of,  may  be   appealed  from,  to  the  governor 


and  council  of  the  plantation,  tS.l. 

F. 

Jcf.t  acts  of  Barbadoos,  obliging  officers  to  hang  up,  in  their  oifics  and 
courts,  table*  of,  proper,  but  punishment,  without  trial,  for  the  omis- 
sion, unjust,  3'JO. 

Ech  dc  se.  grant  of  felons'  goculs  doo.s  not  extend  to,  170. 

Filona'  goods,  what  passes  by  grant  of.  and  what  not,  170. 

Fines  and  rrciii'rrica,  in  Iv'.gland,  v)f  lands  in  plantations,  cannot  bar 
the  entail  of  such  lands,  unless  tlio  laws  of  the  jiluntation  have  provid- 
ed they  shall  have  tliat  effect,  488. 

Fish,  ro'jal,  may  be  claimed  by  prescription,  1.10. 

FishuiL'  admiral  in  Newfoundland,  their  autiiority  under  10  and  11  Wil- 
liam ill-,  r,'S?. 

Fis/icri/,  obs.Tvations  on  tiie  cliarter  establishing,  .T^^. 

Forfeiture,  if  a  provinee  has  incurred,  no  advantage  can  bo  taken  there- 
of but  by  sucire  facias,  to  repeal  the  cUur^cr,  or  by  iiKiuisiiion  fiueing 
such  forfeiture,    '  oO. 


INDEX.  Y73 

Forfeiture,  but  it  seems  the  king  may  appoint  another  governor  without 
in-iuisition,  and  hi.s  authority  will  be  legal,  66. 

what  pas.cs  by  the  word  forfoitu.e  in  a  grant,  170. 
—  effect  of  pardon,  with  reference  to  forfeitures,'  171. 
'listribuiion  of,  under  the  acts  of  trade   577   ' 
iv.^^/,.   dis.^ev:.,g  the  precept  of  judges,  p-nilhable  in  a  summary 
wa>  by  rule  of  nourt,  b;  fine  and  impri.onnu  at,     74.  ' 

G. 

^Ci  niXQ  >iv I  render. 


•oJ 


I's.-rvation  on  act  of,  respecting  trade  with  Indian.-,,  591. 


Gibraltar,  establi.hn.ent  of  civil  jurisdicUon  in    I  83- 
Gorerno,.,f.,ant.u;.ns  empowered   to  appoint  naval  officers,  tore- 
^.ve^-^r^,,  of  .ships  arriving  at  tl,e  plantation,  183 

''"^''-  conHnission.s  continue  for  six  months  af- 
ter tlickuigs  death.  234,  300,  310. 

~'       ,        ,  ''•""'^''  "-^'^  ««   councillors  in  the  passing  of 

^^b^ll^when  the  council  sits  in  a  legislative  capacity,  238. 

239,  ZWi.  «'»r'0^vered  to  exercise  the  king's  prerogative, 


■  by  virtue  of  tlic 


.  -"nimi.ssion  may  disoossess 

the  actjng  government,  and  a.^.ume  the  go  ernment,  until  the  arrival 
01  another  governor,  213. 

:  "'^""'J  "'0  t'lc   groat  seal  of  the  colony    iu 

grant.ng  offices  by  virtue  of  their  commissions ;  but  a  grant  under  the 
governor  s  seal  may  be  valid,  if  usage  dispense  with  the  use  of  the 
g'-oat  seal,  21»),  217, 

~  "i^i.V  prorogue  assemblies,  247. 


~  I'lay  meet,  ..Ijouni,  ana   legally  act  with   as- 

snn.bl.es  chosen  by  virtue  of  the  king's  writs,  tr.ted  by  a  former  iror- 
eriior,  2.")0  |j  20 1-  ^ 


kin?,  1\yi. 


their  coiimissif  ,3  cease  by  the  death  of  (be 

~  ;  '*>■  ">'^''-  ^^'^•"■'>  ">•  romov.d,  their  commissi^ 

does  not  determine;   but  the    lioutcMM.t  go,  ernor   or  president  of  the 
council,  m.ay  exercise  the  powers  of  i .,  2.'. 4,  302    326, 

'  ~  determination  of  their  patent  does  not  deter 

nunc   tl,o  office  of  any  person  holding  also  by  patent,  nor  any  office. 
Iiu.d  by  the  seal  of  the  province,  ib. 


774 


INDEX. 


Governora  of  plantations  cannot  legally  issue  writs  for  choosing  now  rep- 
resentatives, without  dissolving  the  assembly,  271. 

stand    in    the    same  relation   to    the   other 

branches  of  th-?  legish-.tiurc,  as  the  king  to  the  other  branches  of  tho 

parliau^eut,  30-2. 
. should  transmit,   in  due  time,  laws  for  tho 


king's  approbation,  318. 

cannot  {by  virtue  of  their  commissions)  cm- 
power  the  passing  an  act  contrary  to  law,  37."). 

if  they  have  authority  by  their  ooramissious 


and  instructions  to  erect  courts,  thoy  may  grant  a  commission  of  oyer 
and  termiuer  for  trial  of  offences,  471. 

^ clause,  empowering  them  as  chancellors,  to 

issue  commissions  for  the  care  and  custody  of  tho  persons  and  estates 

of  idiots  and  lunatics,  4S1. 

-  by  virtue  of  a  general  power  of  erecting  courts 


of  justice,   they  may  appoint  a  chief  barOn  of  a  court  of  exchequer, 
481. 

Grc  .is  Kihs'k,   100. 

of  tho  office  of  auditor-general  of  the  revenue  of  a  colo 

iiy,  good  in  law,  and  may  be  exercised  by  a  sufficient  deputy,  IGO, 

of  felon.s'  goods,  what  passes  by,  1G9. 

what  passes  by  the  word  "  forfeiture,"  170, 

the  circumstance  of  their  having  been  w.rrants  for  mak- 
ing grant.^;  many  yc""  before  the  grants  issued,  is  not  sufficient  to 
support  grants,  otherwise  irregular  and  void,  174. 

-  where  grantees  possess   a  greater  quantity  than  they 


should  hold  bv  tlio  words  of  the  grant,  they  are  liable  to  a  resurvey, 
and  the  remedy  is  by  information,  in  the  name  of  the  attorney-general 
of  tho  province,  in  a  cour*  of  equity  there,  to  have  the  r.,al  quantity 
Bet  out,  and  the  excess  pared  off  for  tho  crown,  174. 

where  grants  are  voidable,   the  remedy  is  by  an  inform 


ation  of  intrusion,  i:i  the  proper  courts  of  the  province;  and  in  case  of 
error  there,  by  appeal  to  the  king  in  council,  173. 

of  two  baronies  m  Carolina,  •'  qur.rum  sinauhe  cnntin 


eat  12.000  acra%  crrar  void  for  '.ncertainty,  I7t:.. 
, by  the  crown,  of  tho  office  of  registrar  of  a  provuioe, 


valid,  1/8. 


—  of  office,  shouM  be  under  tho  great  seal  of  tho  colony,  247. 


INDEX. 


775 


""hntssl^''"''  •"'  '"  """"="'''^'  '""^^  -'  -*-^  *°  Newfound 
-—  difference  between  this  and  the  Museovy  eompany,  546. 

Guernsey  and  Jasaj,  no  ^rit  of  extent  out  of  the  court  of  e.ehequer 
^^anyprocc..  fr.n,  the  -ourt  of  king's  bench,  can  be  executed  in,  89' 

courts  tke'^..  "'""''  '"'  "°""  '"'''''  ''  ""'■  P^°""^d-g  -  '^^ 

z~  ~::-:  'r^^'^'  '^  ^^^^  ^*'  '^-  -->  -%'  ^  the 


king's  orders  in  councii,  ib. 


H. 


,;orted  in  English  bottoms 


Hemp,  of  the  growth  of  Russia,  ,n,,y  {.^ 
from  the  Netherlands,  569. 

I.   J. 

Jamacia,  orig.nal  constitution,  and  commissions  of  the  different  govern- 
ors of,  on  ..s  con,uest   from  the  crown  of  Spain,  and  acts  pasLd  by 
he  governor  and  coune.i,   and  by  the  assembly  of  freeholders,  and 
their  validity  and  continuance,  2 1 7,  ct  scg. 

whether  to  be   considered  us  a  colony  of  English  subject.,  or 
as  a  comiaercd  countrj-,  231. 
■  -  whether  the  govern^,  .f,  has  a  right  to  issue  writs  ^^or  electing 

bT^"  352'  """■''  "''""^  ''"""^' '"  ^  "^^^'■^•^  ^^-  ^'^ — 


-_  the  "act  to  provide  an  additional  subsistence  for  her  majes- 

ty  B  offices     nd  soldiers,  and  for  other  uses,"  objectionable,  as  in- 
trcnclaug  on  the  queen's  prerogative,  350. 

the  "  act  for  granting  a  revenue  to  his  majesty,  his  heirs,  and 
successor.;  for  th.  support  of  ,he  governor  of  this  island,  and  for  ^evis- 
mg  and  perpetuating  the  acts  and  laws  thereof,"  objectionable,  from 
ltd  non-conformity  to  the  instructions,  353. 
— -  -  act  of  foreclosure,  passed  by  the  assembly,  not  objected  to  aa 
domg  no  .nore  than  a  court  of  en^uity  would  do,  but  the  irterferenc;  of 
the  !eg.slature,  m  private  matters,  generally  objectionable,  356 

similar  act,  approved  vndcr  parucular  circumstances,  385. 
rcvtaue  acta,  observations  on,  397,  428   452. 
objectionstoan  act,mak:  ,c ,^11  tueir  lawslndacts perpetual,  399. 


Y76  INDEX. 

Jamaica,  "  art  for  regulating  foe,,"  objectionable  in  part,  from  itB  un- 

rcasonabloncPf,  lOr* 

ob.orvat.cs  o»,  an^l  objcctio.,-*  tu  ll,.  acts  of  assembly  pao.ed 

in  1757  r.s;,oetinL'  the  judges  of  the  supreme  cour*  of  lo;:i.lature„  the 
deftion  of  mr.Mbevs  ..f  tl,e  assnublv.  the  .(uietiog.  po^-scssio,;,.  mu.I  os- 
tablisi.ing  reputo.l  bouo.Iario.s,  the  appointin-  coniinissione.s  ot  nisi 
;,^,//.S  and  rnlarging  the  jurisdiction  of  justices  of  peace  in  uiatters  ot 
^^ebt   and  the  establisluiig  the  credit  of  the  island,   lilO. 

L  objeotion,s  to  a  clause  in  an  act  of  assembly,  by  ^vlli(•l'    vesscU 

having  biLck.s  on  board,  amounting  in  number  to  above  on.-fourth  of 
the  hands,  ^.ere  to  be  forfeited,  and  e.t.tes  of  non-resnUnt,  were  taxed 
higher  than  those  of  resident  proriet  .rs,  IjI.  ^ 
^_  obj.-etion  tD  the  acts  relative  to  the  removal  .d'  thr  seat  o.  gov- 
ernment to  Kingston,  and  an  act  to  enhirge  the  jurisdict.ni  of  u^c  m- 
ferior  court  of  common  plca.s,  1  otJ. 

kingnny  op.-n  ports  of  entry  and  clear.m.v  in  different  parts- 

and  direct  otlb-.'rs  to  attend  for  i!ic  business  of  muIi  p.^rts.  (.-.8.        ^ 
circuit  courts,  cndd  n-.t  be  established  but  by  the  act  of  tnc 


legislature  of  the  island,  or  tnc  parliament  of  (Jreat  IJr.tam,  I..0. 

..nm.ni-ionrrs   of  >n.t  pii,,^  not   empowered,   under  the  act 

passed  in  i:.  1.    to  h.dd  a  curt  of  n,^>  i>nus  wlthoul  a  .•ommis.-ion 

from  hi.s  ni.'iiesiv,  !T  - 
and'a  commissioner  so  holding  a  court  is  liable  to  be  prose-u 

ted    by  iuf"nnation,f'r  misdemeanor,  ^/y. 
mot.  and  LunoliiS.  form  of  .boi:  e,  giving  the  governors  of  plantations, 

as   chane.ll   rs,   ; er    to   i>sue  eoum.issions   a.reeabls   io  the   usage 

and  practice  of  Kngl and,    1-^1. 
,1,0   .-haneellor.   under   the  kingN  waM'ant,   has  only 

po,v,rsof   admmistratnmand   management,   and  all  .pi-Hons   (exerpt 

between  tlie  Innat..  and  his  cmmiUtee)  must   be  decided  by  a  lull  or 

action,  i>'S.  •  ,  •     ,i 

.    1  (,.  ,,,  tl,,.  tiii^i- ot  the  ■<liili>*'  eomini' witjiin  tln' 
Iwportdtwn,  IS  account,  d  Iiniu  tin'  tun  oi  in.    iii| 

l,„„ls  ot  the  port.  NMth  in.ont  to  l:,nd  ilsearg'  iheie,  .->:•.• 
l.ulKlino.t.  injurs  to  trade  puni.Hliabb  by,  .-.."m 
l„l,.nnari<,..    by'attornies  general,  act  respecting,  and  ob.serrafon.  on, 

■i'j4,  vy'> 

lie  for  injuries  to  trade,  5.">2. 

In^urunr.  of  s'.,,,s,  proposed  charter  to  a  corporalo  body  for,  obscrva- 

•tiou  t  on,  5yu  to  ooy. 


INDEX. 


777 

Intestat^^s    ppr,.onal  .state  in  England,  and  in  the  plantations,   liability 
and  apphcatiop  of,  Gi.  ^ 

.Mulatto,  in  tl,o  hnlKunas,  dying  inte.tato,  withont  relations 
0..e  nuncy  of  his  .states  go.,  to  the  crown,  ,l,o  other  to  hi.  wife 
1)0.  ' 

eee  titles  A,ha>nsfrof„>>,  and  Af/nmns'.-afo> 
Jurl,,.,  empowered  ,o  i..„e  thWr  preeept  to  freeholders,  where  a  iustico 
o    the   peaee  has  resigned,    and  fr,..hol,lers  disol^yin,.,  „,ay  be   pun- 
ched ,n  a  .u.nn,ary  way.  by  rub.  ,d  eonrt,  w.,h   fine  and  in.prisontnent. 

—-— -  con.n.ission  of.  not  rcvoeable  without  nn.b,.havior,  10 1 

tractcd  before  the  war,  r,;v.\, 
J^rs^.^.,rr  nre  to  aet  aeeordln.  ,o  the  laws  of  Kngland,  537,  53^. 
and   oneiH'es  a;:ai„.-;t   thein  are  puni.shable  by  fiuc  and 
inija-isonnient,  .",37. 

'~~  ""■''■  ''""'''•  '^  '•''^•rained  to  .■riniinal  matters,  mention- 

ca  m  their  eomnii.-.sioii,  53^',  .".l  1. 


AV./S-,  his  eeeJe.siastieal  anthorilv  abroad,   I  I. 

—  bis  prerogative  ea„not  be  i:....,ned  ir  ,ai<en  away,  by  general  words. 
Iiutonly  by  express  terms,  .'.-.,  I:;-,,   13.1 

his  eivil  anthoiiiy  abro.id.  t',,-,. 

—  where  a  governor  has  e.mnn.ted  a  b.tV.t.re,  ,he  kin.  mav,  though 
t  l.as  no,    ....a  i.„n.d  by  .u,,u,.,ion,   eousti.ute  aao.her  p.ven.or,  and 

his  aulh  Tity  win  be  I,.;.mI,  (■„■,.  '^  '     ^ 

~~  "I-,  an  extraordinary  e,i,en.,-,  he  n.ay  resuuie  ,1„.  government 
of  any  prov„,ee,  or  e„iony,  and  eonsti.ute  a  e.  d  and  nub.ary  govern- 
<ir  iberoof,  07.  ''  ° 


but   sueh    gnvernor  eanno,   altero,v  of  the   rub .,  of  prop.rty   or 
""■li""ls  "I  proeeeding  in  civd  .■.nis,-,  ,6. 

—  be  m«y  receive  a  surrender  of  ,!,„  pow.rs  uherewi.h  th,.  ,,n,prio. 

tor  and   governor  of  a, -0   is  nn  e-„.d  by  gr  ,n,    fr„m  ,h,   erown, 

07,  69,  7'2.  ' 

■ bis  anth..rlty  over  (J.ornM.y  and  .lorscy,  88. 

bis  right  to  grant  eeded  lands,   10,5. 

Lis  right  to  „  moiety  of  an  intestHte  mulatto-.s  ..tate,  and  to  trcM- 
uro  truve  la  the  UaLuujus,  ICO. 

99 


ii 


778 


INDEX. 


M 


Khif!,  no  prescription  against,  where  a  colony  has  been  gained  within 
ti  lie  of  iiKinory,  I'lO. 

hi.s  [ur.vrr  <if  t:ix:itiiil!,   !:'?. 

luuv.  unJci-  tlio  great  .«tal,  direct  duties  to  lie  levied  for  goods  ex- 
porter from  eoiniuered  parts,  159. 

rnay.  by  virtue  of  his  prerogative,  make  laws  that  will  bind  places 

obtained  by  eoiiipiest,   ih. 

may  tab     off  unapp'-opriated  duties,  ICU. 

his  grants,  !iA"l;   and  see  title  d'nii/ls. 

,  liis  [.nwrr   til  rouiiic  giMUti-d   lands,   where  tliu  conditions  of  the 

'       grant  h:ivo  not  bin  n  fuliilk'd,  l<i~. 

his  ninrdv,  wlurc  grantees  hold  more  land  than  the  words  of  the 

grant  warrant    aiid'wb.re  tijo  grants  ari' voidabb',  17  1,  175. 

m.iv,  by  virtue  of  his  prerogative,  e^tallish  i;;',irts  of  equity  in  the 

plantations,   i'.'.'i. 

ami  conrls  of  CXI  lo'oiier,    ISb 

and   crliniiial    courts  by  eoiii:.iishiou  under  the  great  seal,  but   not 

otherwise,  5  ii  to  .")  1 1. 
should,  afti  r  a  surrender  by  Irustees,  of  a  charter  for  establishing 

a   colony,   issue    a   procbimafiou   under  the  great  sud,   in  order  to  au- 

tlioii/c  i.llicTs  to  continue  in  the  exercise  of  their  offices,  until  a  new 
governuieiit  is  established,  l'.'^. 
has  always  exercised  the  right  of  <alling  and  continuing  assemblies 

ill  tlie  coloiiich,   when,  and  as  long  as  it  was  nee.  --iry  for  the  public 

service,   .00. 

whether  his  prerogative  under  tiie  stat.  ■i\  James  I.  c.  :!,  concern- 


ing monopolies  to  grant  patents  to  tirtt  iii\ tutors, exttml.-  to  the  plan- 
tations iloubtful,  214. 

„i:,-  ,  ,,,,,1,  ,•  tlie  great  Pcal,  give  powers  to  governors  for  doing  all 

nets  which  belong  to  him  by  his  prerogative,  'JoO,  '.ilil. 

ill  legal  ;roeeedinf.'s,  an  i.ppeal  lies  to  tlie  king  in  counci!.  .:30. 

effect  of  his  ibatb  upon  In.-  patents  and  conimi.N-ions,  ■S.',\. 

And  see  titles  r,i/iiifs  Mt'\  Con  niurs. 

his  prerogative,  in  relulion  to  general  a.ssenjiilies,  '.iJO,  259. 

his  prerogative   in   the  West   Indies  is   that  pow,  r,    which,  by  the 

common  liu.  h.   ,  ould  rightfully  cxorci.  0  in  England,  '23'J. 
bis  powers  of  summoning  and  prorog  ling  pailianicnt,  2i0. 


by  Lis  death   liis  coiuuiissious  cease,  and  geueral  a.^stwllies  aro 

dissolved,  'ibi,  !i53,  238. 


\%, 


INDEX.  779 

Kir,g,  but  as  to  tlie  dissolution  of  ...scmblios.  see  comra,  302  to  320 
and  acts  done  under  comu.i.ssions  after  his  death,  but  before  notice 
of  it,  are  guod,  307. 

■  -  may,  by  instructions  to  his  governor,  alter  tlie  right  of  representa- 
tion, where  it  was  founded  on  instructions,  if  there  have  been  no  act 
of  assemldy  approved  l)y  him  to  the  contrary,  2(39,  '.273,  275. 

■•■.  a  pVovincc  increa.-^.s,  he  niny  erect  towns  and  counties,  and  give 
them  thoprivih'ge  of  choo.sing  representatives,  202, 

hi.s  name  in  acts  of  assembly  unnecessary,  310. 

his  writ  of  summons  is  necessary  for  the  convention  of  an  assem- 
bly, 327. 

U,x,^.  should  be  prnntod  to  th.  king,  his  heirs,  and  successors,  SCO. 

bonds  to  li„.  king,  have  the  effect  of  ju,]g„,n„ts,   302. 

liispror-Yativ-  c.„not  be  nffc-cted  by  nnv  act  of  asson.blv,  376. 

ought  not  (on  Mccount  of  the  final  ap,,cal)  to  interfere  in  a  case  bo- 

twecM  party  and  party,  I'O. 

cannot,  by  law,  direct  the  rch.aring  of  a  cause,   190. 

niay  alliw  an  appeal  in  eases  of  any  value,   ih. 
may  grant  a  >r./ir  prose,j,a,   in   pros.H'utions  f,r  duties  charged  bj 
an  act  of  a--"„il,lv,   [  i|  '^        ■> 

cannot  h^  ln~  l-t,,.-  pafnt  make  bonds  assignable,  or  make  things 

per.-ional  de.seciiO     •  tli,  I    ir,  57u. 

where  cmmiv.io,,.  rs  are  apiminted  for  the  trial  ^f  capital  offences, 

he  may  instruct  the  governor  to  carry  their  sen' enee  into  cxVention,  514.' 
cannot  enfnre,.  ngulalions  en„(,,,ry  to  act  of  parliament,  510. 
may  prohibit  his   snljeets  tVom  gii,,;:  o„.  of   the  reahn   vvi.hout  li- 
cense,  .')17. 

and  may  eonmiand  tlieir  return,  r<X\,  .-,.-,  I,  5-,,-,. 

'"•''-^■'  ""  'I '■''  •"■'•^"'ions  and  for  stai,'  rea>o„.,  restrain  particular 

subjects  from  an  nncontrolable  iiberty  of  trading,  Sl-J  to  554. 
niay  make  laws  in  plant.dions,  odiuiuted  by  hi.^  .subjects,  with   his 

Iieniiission,  582. 

cam,ot,   by  (re.ty.   make  his  subjects    liable  t- oil,,  r  pnnishmcnls. 

•ban  Ihey  are  s.il.jeet  to  by  the  laws  ,,f  t|,e  eoi.iit.y.  (323. 

hiwn  of  nnlKDis,  i'jI2. 

Law»,  p«.sHti.l  after  the  sale  of  a  prov,„ee,  but  bcfort  BOtlo* of  such  «al«, 
aro  valid,  but  noi  after  notice,  24  4,  312. 


780  INDEX. 

Legislature  should  not  interfere  in  matters  of  private  right  without  the 
greatest  .,v-cssity,  but  sliould  leave  them  tu  the  legal  course  of  jus- 
tice, 357,  35S. 

Ziu-ntiatc  Lawyers,  ohjiotions  to,  39'2. 

LicutciiantgoLermr,  may  bo  indicted,  and  tried  in  the  king's  bench, 
under  the  act  for  punishing  governors  of  plantations,  for  offences  com- 
mitted in  the  plantations,  '260,  Oil. 

, whether  subject  to  the  penalty  under  the  7th  and 

8th  Wil.  III.  u.r  regulating  abuses  in  the  plantation  trade,  qiiare^  id. 

Lo"U(K>il,  carriage  of,  fr()n\  Honduras  to  Venice,  5G3. 

Lomhiii,  bishop  of,  is  diocesan  cf  the  O'lunies,  4-2. 

Luti'iliis:  .-^ce  title  Idiot  a. 

M. 

31(111,  Isle  of,  custom  bouse  ofliccr.s  cannot,  by  niituc  of  their  office, 
make  seizures  in ;  but  under  the  -'th  Geo.  I.  they  may,  as  common 
person.".  mai;<' seizures  f'ir  inipnrlations  tliere  cuntrary  to  that  act,  '211. 

JMinnlaU tires,  what  machines  or  tiiols  used  in,  are  prohibited  from  ex- 
jiortation,  ."I'JO. 

Marslnil  is  the  proper  othcer  in  the  colonics,  to  whom  warrauts  should 

be  d  rcctcd,  otj3. 

Murliii/  /<iv\  proilamation  of,  docs  not  suspend  the  execution  of  the  leg- 
islative autiidrity,  nor  is  the  ordinary  course  of  law  and  justice  sus- 
pended .■ii;y  fiiilher  than  is  necessary  toan>wtr  the  military  service  of 
the  ]iubli  •.  Mud  the  exigencies  of  the  province,  2ti.'. 

Manjlaiui  bill,  ol'ser^ations  on  the  clauses  in,  and  objections  to,  2G4. 

"  .,( t  for  tiie  establisiimciit  td'  reli-ious  worship,  according  to 

the  churrli  ot  Kn-land,"  valid,  iiutwithstanding  the  king's  death  ;   and 

shiidl-  might  execute  lor   llie    lOlbs.  of  tobacco,  established  liy  that 

act,  for  the  maintenunee  ul  ministers,  ^'J'.l  to  320;   rnntru,  320  to  3:i2. 

act  of  reeogTiition  of  (jueeu  Anne,  by  the  ussenddy  of,  deemed 

improper,  332. 

suspending  act  in  force  for  eighteen  months,  or  until  thcque^n 


bLouIJ  declare  her  pleasure,  but  could  not  be  contniucd  longer,  3  I'J 
MiiMiic/iuselt's  Bay,  establishment  of  a  court  of  ei|iiiiy  in.  I'J*. 
. eon-irnetion  of  theii  i-barter,  n»  to  the  time  allowed 

to  the  king  for  the  a].pro\,il  or  repeal  of  their  acts,  338. 
Merc/uints  abroad,  refusing  olfict  -i  necessary  to  suj'port  the  society,  are 

debarred  of  all  privileges,  and  of  the  proteetiou  (  f  the  consul,  588. 


INDEX. 


781 


il/ jrm,  with  algior.,  observations  on  tho  report  relating  to  the  trade 

Monoj^Jic.,  doubtful  .b.ther  stat.  .,  Jac.  1.  c.  3.  concerning,  extends 
to  the  pKmtMtions.  211,  581. 

~~ "'''""  *•'"  "^'  '"'^  "P""  tl'^t  statute  for  seizing  goods  of  tho 

African  company,  SSO,  GSl. 

3Iunlcr,  pcr..o„.s  guilty  of,  i„  tho  colonics,  n..y  l,e  tried  under  a  co.a- 
mission  issued  into  any  county  in  England,  210. 

'N. 
Natura.     ,aion  act  of,  by  assembly  of  a  province,  effect  of,  332. 

-    '"ucli  an  act  deemed  projicr,  333. 

— -        _         .vilhout  license,  will  not  discharge  a  naturalborn  subject 

Ironi  his  allegiance,  (J13. 
Naval  s/orrs,  importation  of,  from  foreign    parts,  by   „.„chants  for  the 
.  use  of  the  navy,  prohibited  by  stat.  M  Oh.  II.  tW  preventing  frauds 

and  re.nlatn,^^  aluises  in  tho  customs,  but  such  stores  may  bo  import' 

ed  in  king's  sbip.s,  for  the  service  of  the  nuvy,  5G7. 
-—-carriage  of,  by  a  nation  i.;  alliance  with  another,  to  the  enemy 

of   the  latter,  is  ag-iinst  the  laws  of  nations,  G2I. 
K(n-ii^„tio„,  act  of,  liberty  to  aliens  to  trade  is  airainst,  oGI. 

,,rivilcges  of  fade  propo.-^ed  to  be  .-ranted' to  the  Spaniards 
ngainst,  .")(i2.  ' 

T>^o,ln,,  „,•  Spanish  ships  to  the  British  islands,  is  again.st,  567,  573. 

I>n'utntl ahips:  see  'ri;iil,\ 

Nrutralit,/,  treaty  of,  with  France:  see  Trndr. 

Nnrfhund/.nul,  act  for  cncou-aging  the  Greenland  (ishcrv,  does  not  ex-    • 
tend  to,  Slif).  ^y  ;.-»-.,.•,  •  ,      y 

-—-—trade,  by  10  and  1  I  Wm.  [11.  is  n       .  trade,  and  noUaxa- 
ble  for  buililiiig  a  j)risi.n,  .".37. 

-  jiowcr.<  of  justices  of  peace  there,  il> 

. "I'Jcc'ions  to  articles  between  Great  Hi ,  and  France  re- 

spocting  the  trade,  as  contrary  to  10. •I'ld  I!  W,,,    III    543 

Nnn  Jcrsc,,,  construction  of  tho  king's  ,  „„,m.s..,on.  and  instn.Hion,  to 
U  Q;oyornor«  of,  with  rcpect  l„  hisj.ower  .f  par.Ion,  and  suspending 
prooeM,  or  stopping  proceedings  in  cases  ofhigh  trenson  or  murder 
201.  ' 

—  -rr.oMunendation  of  tho  "  act   for  ascertaining   tho  plaoei,  of 
tiio  sitling  01  the  representatives  to   meet  in  general  awembly,"  4i5. 


-4  I 


ll 

11 


782 


INDEX. 


Nev)  Jersey,  ohjoction  to  the  acts  for  shortening  lawsuits,  enforcing  the 
observaiifu  of  the  ordinance  for  establishing  fees,  and  foi-  acknowledg- 
ing and  rcoor<l"ig  deeds,  1 15. 

, objections  to  a  naturalization  bill,   and  other  acts  passed  in 

1748,  for  punisiiing  counterfeiters  of  coin  and  bills  of  credit,  for 
staying  actions  against  rioters,  for  the  suppressing  of  riots,  and  for 
the  pardoning  of  rioters,  446. 

Neiv    York,  king's  right  to  call  assemblies  in,  299. 

act,   dechiring   the    illc;.^ilrty    of   the   proceedings    against 

Bayard  and  Ilutchins,  objected  to,  as  not  conformable  with  the  queen's 
order  in  council,  310. 

-ob.servatijns  on,  and  objections  to  the  act  of  1727,  for  pre- 


venting prosecution  by  information,  493,  49C. 
Nolle  pnjsr,/ul,  may  be  granted    on  prosecutions    for  duties,  charged  by 

an  act  of  assembly,  192.  , 

jyova  Scotia,  governor  and  council  of,    have  not  alone  a  power   to  enact 

laws,  2i'io. 
until  thor"  bo  .an    asscn.bly,   the    government  of  the   colony 

must  be  pursuant  of  the  king's  commission,  ib. 


ii«'  and  I'l-oro^'uiiig,    and   customs 


J 


jr. 

rnriliin,  iftVct  of,  with  reference  to  forfeitures,  170,  531 
l\irli>iiinnl.  king's  p.iwer  of  suiunioaiiig  and   proroguing 

of,   in  that  re.spcct,  2 10. 
I'ulenls  for  new  inventions,  whether  prerogative  of  granting  extends  to. 

the  p'i;int;ilions     doubtfnl,  2|4 

. .,t  ,,,niinon  law,  determine  by  the  death  e*"  the  king,  234. 

but  by  Stat.  'i.  and  S   \V.  III.  e.  27,  and  1  Anne,  c.  8,  s.  2,  they 

continue  for  six  montlis    alter  the  king's    death,  unless  suspen  led  by 

his  Mieccssor,  235. 
the  determination  of  one    patent    cannot  determine    another  m- 

depem'.ent  on  it,  2.'  I. 

JV;//^vv/r./'/"/  eharter,  .-onstruction    nf,  as  to    tlie   six    month.s    thereby 

nll.iw.  d  tn  I'he  erowp  to  r.-peal  V.  .  .  passed  in  the  province,  3.M. 
acts  pa.-.sed  in  1723,    for    establishing  a  paper  credit,   and  act 

exempting  freeholders   to  the  value  of  fifty  acres    from   arrest,  impro- 
per. 441. 
^observations  on  acts  passed  in  1712,  13  14,  and  l.>,  -142. 

Pepper,  bluek,  patent  respeeting,  009. 


INDEX. 


783 


Piracy,   persons   suspected  of,    cannot  be   detained  in  custody    207 
—-.Stat.  1 1  and  12  W.  III.  c.  7,  foi    oppression  of,  does  not  extend 

to  ca.sos  of  murder,  21  i,  627. 

is  felony  by  the  civil  law,  511. 

• and  made  so  by  stat.  28  Hen.  V  H.  c.  15   io 

-by  .^tat.  1 1  apd   12  W.   HI.  e.  7.    specid  ■commi.sion^^rs    in  the 

colonics  may  try  piracies,  513. 
•  -the  goods  of  pirates    are   forfeited  on   their  condemnation;  and 

goods,  piratically  taken  by  them   from  others,  belong  to  the  erown,  in 
case  of  non-claim  by  the  right  owners,  5 1 4,  5 1  5. 
—--construction  of  proclamation  of  pardon  to  pirates  and  robbers  in 

the  American  sea.s,  529- 

-P="-donofpiratessaves;theirgoods  from  forfeiture.but  goods  pirati- 
cally  taken  may  be  recovered  by  the  owners  by  action,  531. 

I  lamatioiu  :  see  the  several  title;  in  the  index 

Piu.^ariona>.i  culture  of  lands,  is  a  condition  in  law,  annexed  to  the 
title  to  lands  in  the  colonies,  387. 

I'^uU^a  tra,U;  act  of  7  and  8  W.  III.  for  regulating  abuses  in,  .x- 
tends  only  to  governors  and  commanders  iu  chief,  -^03.' 

Prcny-f/^u-f.- .<ec  title  /u'wi,'. 

rrcscnption,  royal  fish  may  be  claimed  by,  150 

P/r,.-n;..,..,  a  colony  acjuircd  within  time  of  memory,  excludes  pre- 
scription  against  the  crown,  ib. 

rroJnLu,o„s^\.,  constant  remedy  of  the  common  law  to  prevent  the 
cncioachmcnts  uf  tiie civil  law,  SIC). 

'''*^'''  I'ccesMty  and  propriety,  517. 

T;;^"  '"'"■'"''  f """"''  '"""""'"  '''•"'•■-d ''3  the  governors; 
H  Illegally,  an  appeal  is  the  pn.per  remedy    ;V>  I 

rrop„r,,ry  p/.uUaUons,  laws  made  in,  sboul.l  be  subje.t  to  the  king', 
approbation,  340.  * 

■  ■ ""ti  should  not  exceed  the  charier,  200 

rrussia,  treaty  of  eommerce  with,  nl.M'rvati„i,s  on,  325.   '  ~ 

11. 

Recof-nUwn,  of  a  .sovereign  act  of.  improper,  332. 

RerovcUs:  see  title    rmrs. 

l{nnr,l,.i  the  crown  where  gnui.eea    hold  ,„„re   bonis  ,!,,.,„   ,he   words 

">   <''«  J-'rant  warrant,  where  the  grants  are  vni,lal,lo,    175    |7r, 
Repeal  oi  ..u,  of  assembly,  takes  place  from  its  notification,' 292  " 


784  INDEX. 

Repeal  time  allowed  to  the  crown,  to  repeal  laws,  is  to  be  counted  from 

the  period  of  their  delivery  to  the  privy  council,  337. 
Representation,  where  the  right  of,  is  fouiuled  on  instructions  fiom  the 
crown,  it  may   from   time  to  time  be    altered  in  the    same  manner,  if 
there  have  been  no  act  of  assembly  approved  by  the  crown  to  the  con- 
trary, 269,  273,  275. 
i?r/;mrtAwillnotlie,  where  there  is  no  denial   of  justice,    nor  a  delay 

amounting  to  a  denial,  316. 
.jvlien  to  be  granted,  and  what    steps   should  be   taken   before 

they  are  granted,  618,  019,  G'20. 
Romish  priests,  laws  of  England   in    force  in  the   plantations   against, 

43,  14. 
Rviiia  Company,  their  privileges  of  importation,  against  the  navigation 
art  and  the  charter  of  the  Kast  India  company,  5*^7. 

s. 

Scotchman  is  an  Englishman  within  the  act  for  regulating  abuses  in  the 

plaiitatiun  trade,  64  4. 
Seal  Great,  of  a  colony,  all    grants  of  offices,    and   acts   of  ths  crown 

should  be  under,  '.^47,  248. 
but  t!ie  governor's  private  seal   may  be  used,  if  it  bo  the 

custom,  ih. 
Seamen,  the  king  may,  by  proclamation,  under  the  great  seal  command 

them   to  return  if  employed  in  a  foreign  service,   and   prohibit  them 

from  going  into  a  frcign  service,  561. 
Seamen,  cast  away,  duty  lor  relief  of,  and  observations  on  the  distribu- 
tion and  cva.-^ion  thereof,  588.  • 
Sulrjccts  English,  carry  with  Ihcm  the  laws  of  England  whereever  they 

form  colonics  and  receive  the  king's  protection,  20r,,  517. 
such  colonies  cannot  be  taxed,  but  by   the    parliaments   of 

(Jreat  Britain,  or  with  the  consent  of  some  representative  body  of  the 

people  of  tlie  island, 'iol. 

-may  be  prohibited  from   going  out  of  the  realm    without 


license,  231,  2.57. 

-and  may,  except    they  are    merchants,    be  recalled   by 


letters  of  privy  seal,  554.  560 

-and  if  they  do  not  return,  they  forf(  it  the  rents  ol  their 


lands  for  life,  .and  all  their  personal  estate,  560,  I'll'V 

may  be  restrained  by  the  crown  from  liberty  of  trading. 


INDEX. 


785 


and  punishable  for  a  breach  of  the  regulations  of  the  crown,   5-^% 

to  554  and  582,  to  G46. 
Suiyects,  English,  how  they  may  become  aliens,  666. 
Surrender,  by  proprietora  and  governors  to  the  crown,  of  their  powers 

and  privileges,  67,  69,  72. 

method  of  making  such  surrender,  71. 

after  a  surrender,  by  trustees  of  a  charter  for   establishing  a 

colony,  the  king  shiuld  issue  •        claraation  under  the  great  seal,  m 

order  to  authorize  cllicers  to  co.    nue  in  the   exercise  of  their   offices 

until  a  new  government  is  established,  198. 
Suspension  of  rights  by  conquest  of  land,  revival  of  those  rights  on  a 

recon(|uest,  131. 


T. 

Taxc.tion  of  colonies,  king's  power  of,  158 ;  and  see  title  King. 

Taxes  should  be  granted  to  the  king,  his  heirs  and  successors,  360. 

Temporary  laws  in  the  plantations,  whereby  the  king's  prerogative  was 
evaded,  to  hi.s  governors  in  plantations  not  granted  in  property,  and 
in  proprietary  p.autations  by  an  act  of  the  parliament  of  Great  Britain 
338. 

Tenure  of  lands  in  Virginia,  being  free   and  common  socage,  as  of  the 

manor  of  Kast  (Jreenwich,   where  any  person  dies   without  heirs,  his 

lands  escheat  to  the  crown,  142. 
but   escheats  on  attainder   of  treason   belong  to  the  crown,  as  a 

prerogative  royal,  ih. 
Title  to  lands  in  the  colonies  must  be  supported  by  an  actual  culture  and 

plantation  of  it,  387. 
Trade  is  under  the  control,  management,  and    direction   of  the   king, 

549. 
injuries  to  it,  punishable  by  indictment  and  information,  551. 


carried  on  from  France  to  Portugal  by  unlicensed  English  vessel*", 

against  tic  stat.  3d  uiul   Itli  .\rino,  571. 

in  neutral  bhi|>s,  with  an  enemy's  country,  prohibited,  570. 

license  to  trade,  with  a  prohibition  to  Others,  is  good  in  law,  582. 

Treason  eso'neats,  on  atlainder  of:  .see  title  Escheats. 

' foreign  may  be  tried  in  the  colonies  by  virtue  of  a  special  ecu- 
mission  from  the  crown,  5,i9. 

Treasure  trove  in  the  Bahatuas  the  property  of  the  crown,  \o\. 

100 


I 


786  INDEX. 

Treaties,  subjects  breaking  and  taking  cammissions  from  a  foreign  pow- 
er to  cruize  against  tlie  king's  allies,  arc  guilty  of  an  offence  against 
the  law  of  nations,  and  by  the  civil  law,  of  the  "  crimen  loesa  nui- 
jestatis,"  and  by  the  law  of  England  are  punishable  by  fine  and  im- 
prisonment, G17,  G18. 

, French  ships  trading  in  breach  of  treaties,  in  British  planta- 
tions, subject  to  seiznre  and  confiscation,  under  the  treaty  of  neutrali- 
ty in  108(5,  and  vice  versa,  627. 

but  British  ships  not   liable  to  confiscation   in    England,   for 

breach  of  the  trnaty,  GiS. 

that  treaty  in  force  in  175G,  C29,  et  seq. 

are  compacts,  superseding  th*^  law  of  nations,  030. 

,  0     gutions  in,  may  be  entered  into  by  implication,  G3I. 

essence  of  a  definitive  treaty  of  peace,  that  the  commercial  and 


friendly  intercourse  of  the   contracting  powers  is   replaced  in  its  for- 
mer state,  633. 

u. 

Union  icith  Scntlajid,  goods  imported  into  London  after,  seized  as  for- 
feited, and  suggestion  of  mode  of  proceeding  for  discharging  the 
seizure,  .'iS3. 

United  States,  whether  persons  born  in  thu  king's  allegiance,  and  rcraain- 
iug  in  the  United  States,  after  the  acknowledgment  of  their  indepen- 
dence, were  aliens  or  subjects,  from  the  period  of  that  ackncwletlg- 
ment,  G4S 

Usii,s;c  long  uniutcrrupteJ,  of  a  law,  imports  ttinVonsent  of  the  proprie- 
tor   and  people  of  a  colony,   that  it  should  be  in  force  there,    208, 

228. 
Usage,  by  stat.  25  Geo.  II.  e.   G.  s.    10.  it  was  considered  sufficient  to 
have  extended  an  act  to  the  colonies,  li.  20'j. 

V. 

Vice-  '     '  ^■"  '"'*  Tiatent,  is  receiver  of  the  dues  and  per-iuisite.s  of 

,.  •  •«•..  ind  ihey  are  restrained  by 

the 


Virgnna,  m  v  ... 
prescribed  by  the  governor's  comuushiou  •_- 

ed,  344. 


INDEX.  iTQiT 

VirgiKia,  construction  of  the  clauses  in  the  act  for  laying  a  d,,,y  oa 
L.iuors  and  respecting  the  appropriation  and  application  of  ^iOo/ per 
auum,  fur  the  r.lief  ufthc  college  of  William  and  M,.rv   403        ' 
— -  obs.>rvatiocs  upon  acts  of  the  assembly,  pa.sed  b  1700,  1701 

--  objections  to  the  acts  for  the  better  govonnnent  of  convicts 

..ported,  and  f„.  the  fnrther  preventing  the  clandestine  transpor  a^a 
f  ersons  out  .f  the  colony,  that  they  amounted  to  a  prohibUlon  of 
convicts  ben.g  imported  into  the  province     -.i3. 

■  act  passed  in  1723  objectionable,  f.,  n    ts  preventing  free  ne- 

groes,  mulattoes,  and  Indians,  from  voting  at  elections,  439. 

War  is  a  ton.porary  exertion  of  force,  to  decide  a  point  of  interest. 
whicli  no  human  tribunal  can  determine,  G33. 
Wans  puuitcd,   importation  of,  prohibited  by  3  Edward  IV.   c.   4, 

Wa^jants  for  issuing  grant.s  not  sufficient  to  support  those  grant,  if 

otlierwise  irregub.r  and  void,  173.  ' 

-        -^to  disseize  a  person  of  his  freehold,  without  trial,  contrary  to 

Was,c  and   unimproved  land.,  where   persons  under  grants  from  the 

crown  have  possessed,   it  is  hardly  po.ssible  for  a  stale  title  to  prevail 

against  them,   10.3.  i"evaii 

W..t  Iud,rs,  whether  the  general  assemblies  nf  the  provinces  *hey  are 

EMand,',.'!''  """''"  ''"'"'  '''   ""'  '''''''''  '^  1-^'— ts  of 

nW.  no  salvage  duty  or  gratification  due  on ;  and  nothing  but  rea- 

sonablo  compnisation  for  labor  in  .saving  carg,.,  G->r,. 
•—        .  cargo  ot,  in  the  nature  of  pledge 7or  the  frieght,  ii. 

Zu^lT"'"'  "  ""''  "'""  "  '"'""  "  "■"'^^^  ^'^-  ^  grant  in  fte 

TT",  '''"'■'*  ""'  ''■<■■  "^  '^""'-^  i"  '^  '■"l"»y,  on  the  settlement  of 

Which  the  statutes  which  gave  the  writ  were  put  in  practice,  i6. 


